Please enable JavaScript.

Coggle requires JavaScript to display documents.

CIV PRO P2 - Coggle Diagram

- - - - (1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
        
        (A) resolve the issue against the party; and
        
        (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
      - (2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.
    - - (1) allow judgment on the verdict, if the jury returned a verdict;
      - (2) order a new trial; or
      - (3) direct the entry of judgment as a matter of law.
- - - - The party seeking this adverse-inference instruction must prove that
        
        (2) the party acted with a culpable mental state (including ordinary negligence), and
        
        (3) the destroyed evidence was relevant to the party's claim or defense
        
        (1) the party that destroyed the evidence had a duty to preserve it at the time it was destroyed,
  - - - Parties Conference and Discovery Plan Rule 26f
        
        Initial Disclosures Rule 26a
        
        Scheduling Order Rule 16b
        
        Party Initiated Discovery Rules 26-35
        
        Exchange of Experts Reports and Expert Depositions Rules 26(a)(2), (b)(4)
        
        Pretrial Disclosures Rule 26(a) (3)
        
        1 more item...
        
        Requests for Production Rule 34 and 45
        
        RULE 34
        
        1 more item...
        
        Interrogatories and Admissions Rules 33 and 36
        
        Rule 33. Interrogatories to Parties
        
        1 more item...
        
        Rule 36. Requests for Admission
        
        1 more item...
        
        Rule 30. Depositions by Oral Examination
        
        RULE 35 Physical and Mental Examinations
  - - - (1) Initial Disclosure
        
        (A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
        
        (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
        
        (ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
        
        (iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
        
        (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
        
        (B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:
        
        (i) an action for review on an administrative record;
        
        (ii) a forfeiture action in rem arising from a federal statute;
        
        (iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
        
        (iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
        
        (v) an action to enforce or quash an administrative summons or subpoena;
        
        (vi) an action by the United States to recover benefit payments;
        
        (vii) an action by the United States to collect on a student loan guaranteed by the United States;
        
        (viii) a proceeding ancillary to a proceeding in another court; and
        
        (ix) an action to enforce an arbitration award.
        
        (C) Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.
        
        (D) Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
        
        (E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
      - (2) Disclosure of Expert Testimony
        
        (A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
        
        (B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
        
        (i) a complete statement of all opinions the witness will express and the basis and reasons for them;
        
        (ii) the facts or data considered by the witness in forming them;
        
        (iii) any exhibits that will be used to summarize or support them;
        
        (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
        
        (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
        
        (vi) a statement of the compensation to be paid for the study and testimony in the case.
        
        (C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
        
        (i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
        
        (ii) a summary of the facts and opinions to which the witness is expected to testify.
        
        (D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
        
        (i) at least 90 days before the date set for trial or for the case to be ready for trial; or
        
        (ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure.
        
        (E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).
      - (3) Pretrial Disclosures.
        
        (A) In General. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to the other parties and promptly file the following information about the evidence that it may present at trial other than solely for impeachment:
        
        (i) the name and, if not previously provided, the address and telephone number of each witness—separately identifying those the party expects to present and those it may call if the need arises;
        
        (ii) the designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and
        
        (iii) an identification of each document or other exhibit, including summaries of other evidence—separately identifying those items the party expects to offer and those it may offer if the need arises.
        
        (B) Time for Pretrial Disclosures; Objections. Unless the court orders otherwise, these disclosures must be made at least 30 days before trial. Within 14 days after they are made, unless the court sets a different time, a party may serve and promptly file a list of the following objections: any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(A)(ii); and any objection, together with the grounds for it, that may be made to the admissibility of materials identified under Rule 26(a)(3)(A)(iii). An objection not so made—except for one under Federal Rule of Evidence 402 or 403—is waived unless excused by the court for good cause.
      - (4) Form of Disclosures. Unless the court orders otherwise, all disclosures under Rule 26(a) must be in writing, signed, and served.
    - - (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
      - (2) Limitations on Frequency and Extent.
        
        (A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
        
        (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
        
        (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
        
        (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
        
        (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
        
        (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
      - (3) Trial Preparation: Materials.
        
        (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
        
        (i) they are otherwise discoverable under Rule 26(b)(1); and
        
        (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
        
        (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
        
        (C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either:
        
        (i) a written statement that the person has signed or otherwise adopted or approved; or
        
        (ii) a contemporaneous stenographic, mechanical, electrical, or other recording—or a transcription of it—that recites substantially verbatim the person's oral statement.
      - (4) Trial Preparation: Experts.
        
        (A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
        
        (B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.
        
        (C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
        
        (i) relate to compensation for the expert's 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; or
        
        (iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
        
        (D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
        
        (i) as provided in Rule 35(b); or
        
        (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
        
        (E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:
        
        (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and
        
        (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.
      - (5) Claiming Privilege or Protecting Trial-Preparation Materials.
        
        (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
        
        (i) expressly make the claim; and
        
        (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) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.
    - - (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
        
        (A) forbidding the disclosure or discovery;
        
        (B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;
        
        (C) prescribing a discovery method other than the one selected by the party seeking discovery;
        
        (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
        
        (E) designating the persons who may be present while the discovery is conducted;
        
        (F) requiring that a deposition be sealed and opened only on court order;
        
        (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and
        
        (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.
      - (2) Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery.
      - (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.
    - - (1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
      - (2) Early Rule 34 Requests.
        
        (A) Time to Deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:
        
        (i) to that party by any other party, and
        
        (ii) by that party to any plaintiff or to any other party that has been served.
        
        (B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.
      - (3) Sequence. Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:
        
        (A) methods of discovery may be used in any sequence; and
        
        (B) discovery by one party does not require any other party to delay its discovery.
    - - (1) In General. A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:
        
        (A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or
        
        (B) as ordered by the court.
      - (2) Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.
    - - (1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).
      - (2) Conference Content; Parties’ Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.
      - (3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:
        
        (A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;
        
        (B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
        
        (C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;
        
        (D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;
        
        (E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
        
        (F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).
      - (4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:
        
        (A) require the parties’ conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and
        
        (B) require the written report outlining the discovery plan to be filed less than 14 days after the parties’ conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.
    - - (1) Signature Required; Effect of Signature. Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name—or by the party personally, if unrepresented—and must state the signer's address, e-mail address, and telephone number. By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry:
        
        (A) with respect to a disclosure, it is complete and correct as of the time it is made; and
        
        (B) with respect to a discovery request, response, or objection, it is:
        
        (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
        
        (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
        
        (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
      - (2) Failure to Sign. Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's attention.
      - (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.
  - - - A party must demonstrate that requested information is relevant to a claim or defense in order to prevail on a motion to compel.
    - - Protect information from certain sources
      - Priviledged: did you tell your lawyer the light was red?
      - Not privileged: Did you see the light was red?
    - - Courts have the discretion to deny requests for discovery that are unduly burdensome or seek information that is disproportionate to the needs of the case.
      - Under Federal Rule of Civil Procedure 26(c), an order may be issued to prevent certain matters from being inquired into to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.
    - - Opposing counsel must demonstrate necessity, justification, or undue prejudice for access to counsel’s written statements, private memoranda, and personal recollections.
      - work product conditionally protected
      - 26 3 A (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
  - - - same as physical witnesses except with expert factual knowledge of the situation
      - do not need to provide written report
    - - Experts hired to provide expert knowledge and opinions on specified facts
      - do need to provide written report
- - - - (1) a short and plain statement of 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; and
      - (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
    - - (1) In General. In responding to a pleading, a party must:
        
        (A) state in short and plain terms its defenses to each claim asserted against it; and
        
        (B) admit or deny the allegations asserted against it by an opposing party.
      - (2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.
      - (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.
      - (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.
      - (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.
      - (6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.
    - - (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:
        
        • accord and satisfaction;
        
        • arbitration and award;
        
        • assumption of risk;
        
        • contributory negligence;
        
        • duress;
        
        • estoppel;
        
        • failure of consideration;
        
        • fraud;
        
        • illegality;
        
        • injury by fellow servant;
        
        • laches;
        
        • license;
        
        • payment;
        
        • release;
        
        • res judicata;
        
        • statute of frauds;
        
        • statute of limitations; and
        
        • waiver.
  - - - (1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
        
        (A) A defendant must serve an answer:
        
        (i) within 21 days after being served with the summons and complaint; or
        
        (ii) if it 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 defendant outside any judicial district of the United States.
        
        (B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.
        
        (C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.
      - (2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.
      - (3) United States Officers or Employees Sued in an Individual Capacity. 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 must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.
      - (4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
        
        (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or
        
        (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.
    - - (1) lack of subject-matter jurisdiction;
      - (2) lack of personal jurisdiction;
      - (3) improper venue;
      - (4) insufficient process;
      - (5) insufficient service of process;
      - (6) failure to state a claim upon which relief can be granted; and
      - (7) failure to join a party under Rule 19.
      - A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.
    - - (1) on its own; or
      - (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.
    - - (1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.
      - (2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
    - - (1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:
        
        (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
        
        (B) failing to either:
        
        (i) make it by motion under this rule; or
        
        (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
      - (2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
        
        (A) in any pleading allowed or ordered under Rule 7(a);
        
        (B) by a motion under Rule 12(c); or
        
        (C) at trial.
      - (3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.
  - - - (b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
  - - - (a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented.......
      - (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
        
        (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
        
        (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending,modifying, or reversing existing law or for establishing new law;
        
        (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
        
        (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
      - (c) Sanctions.
        
        (1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
        
        (2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.
        
        (3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).
        
        (4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.
        
        (5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:
        
        (A) against a represented party for violating Rule 11(b)(2); or
        
        (B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
        
        (6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
      - (d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.
- - - - (1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk—on the plaintiff's request, with an affidavit showing the amount due—must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
      - (2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals—preserving any federal statutory right to a jury trial—when, to enter or effectuate judgment, it needs to:
        
        (A) conduct an accounting;
        
        (B) determine the amount of damages;
        
        (C) establish the truth of any allegation by evidence; or
        
        (D) investigate any other matter.
  - - - (1) By the Plaintiff.
        
        (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
        
        (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
        
        (ii) a stipulation of dismissal signed by all parties who have appeared.
        
        (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
      - (2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
  - - - agreement where plaintiff agrees not to bring suit in exchange for monetary value generally
    - - Mediators look to assist in negotiations and aid in overcoming barriers to agreement
    - - Confidentiality agreements seek to control parties future actions- what they can say about the lawsuit that the agreement ends
      - Confidentiality agreements can require parties to keep confidential information about the terms of a settlement
      - But as much as parties might wish otherwise, confidentiality agreements cannot prevent a witness from testifying about past events that are relevant to another lawsuit
  - - - (a)In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
      - (1)where the award was procured by corruption, fraud, or undue means;
      - (2)where there was evident partiality or corruption in the arbitrators, or either of them;
      - (3)where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
      - (4)where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
    - - Unconscionability of contracts( arbitration agreements)
        
        A contract must be both procedurally and substantively unconscionable to be unenforceable under the doctrine of unconscionability. The question of procedural unconscionability focuses on themanner in which the contract was negotiatedand the parties’ circumstances at that time
        
        substantively unconscionable
        
        The issue of substantive unconscionability concerns the terms of the agreement. An agreement is substantively unconscionable if its terms are so one-sided as to shock the conscience.
        
        procedural unconsciabiltiy
        
        .Whether a contract is procedurally unconscionable depends on if there is (1) oppression, arising from unequal bargaining power that results in a lack of real negotiation and an absence of meaningful choices, and (2) surprise, resulting from terms being hidden in a printed form drafted by the party that seeks to enforce those terms.
  - - - (a) Motion for Summary Judgment or Partial Summary Judgment. 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 should state on the record the reasons for granting or denying the motion.
      - (b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.
      - (c) Procedures.
        
        (1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
        
        (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
        
        (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
        
        (2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
        
        (3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
        
        (4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
      - (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
        
        (1) defer considering the motion or deny it;
        
        (2) allow time to obtain affidavits or declarations or to take discovery; or
        
        (3) issue any other appropriate order.
    - - If Def moves for SJ on P’s claims, P (who has the burden to respond) can get to a jury if P establishes enough facts that a reasonable juror could find for it.
      - 2.If P moves for SJ on D’s affirmative defenses OR on D’s counterclaims, D can get to a jury if D establishes enough facts that a reasonable juror could find for him.
      - 3.If P moves for SJ on P’s own claims OR D moves for SJ on D’s affirmative defenses, they are moving on an issue on which they bear the burden of production and persuasion. They must, in order to obtain summary judgment, establish that all reasonable jurors would find for them.
      - 4.Remember, too, that P can move for partial summary judgment on one element of his claim. That will take that element of the claim away from the jury. Again, of course, P would have to establish enough facts that no reasonable jurors could find differently.
- - - - (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:
        
        (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or
        
        (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.
      - (2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.
  - - - (b) During an Inquiry into the Validity of a Verdict or Indictment.
        
        (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
        
        (2) Exceptions. A juror may testify about whether:
        
        (A) extraneous prejudicial information was improperly brought to the jury’s attention;
        
        (B) an outside influence was improperly brought to bear on any juror; or
        
        (C) a mistake was made in entering the verdict on the verdict form.
- - - - A formal exception to a ruling or order is unnecessary. When the ruling or order is requested or made, a party need only state the action that it wants the court to take or objects to, along with the grounds for the request or objection. Failing to object does not prejudice a party who had no opportunity to do so when the ruling or order was made.
  - - - The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States... except where a direct review may be had in the Supreme Court.
    - - If court of appeals has no jurisdiction to hear case, Supreme court also lacks jurisdiction
    - - collateral order doctrine
        
        . This doctrine provides for review of orders that finally determine claims of right separable from, and collateral to, rights asserted in the action, and that are too important to be denied review and too independent to the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. The three-pronged test for this standard is (1) whether the order conclusively determines the disputable question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment.
        
        application of official immunity is a common appealable order as it hits all 3 prongs
      - Injunctions
        
        injunctions can be immediately appealed
      - Interlocutory appeal
        
        28 U.S. Code § 1292 - Interlocutory decisions
        
        (b)When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal ......
      - Mandamus
        
        writ of mandamus brings suit in an appellate court against the trial judge in the case, seeking an order that the judge perform an act required by law.
        
        commonly used when judge has denied a jury trial
  - - - Issues of Law are Reviewed De novo
      - Court of appeals grants more deference to issues of fact, reversing only if trial courts decision was clearly erroneous
        
        A finding of fact is clearly erroneous where the reviewing court is left with a definite and firm conviction that a mistake has been committed. Even though the court of appeals may have resolved the issue differently, and it is plausible in light of all the evidence that the district court’s determination cannot be disturbed. The district court is owed particular deference when findings of fact are based on the credibility of witnesses, as the district court is in the best position to weigh their credibility
      - Rule 52. Findings and Conclusions by the Court; Judgment on Partial Findings
    - - Federal courts are forbidden to reverse for "errors or defects that do not affect the substantial rights of the parties"
      - a court must, after concluding there was an error, also decide whether the error was harmful
- - - - (1) mistake, inadvertence, surprise, or excusable neglect;
      - (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
      - (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
      - (4) the judgment is void;
      - (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
      - (6) any other reason that justifies relief.
- - - - BEFORE TRIAL
    - - DURING AND AFTER TRIAL
- - - - Using 12b Motions before answering
        
        once you plead one, you must plead all in the same pleading EXCEPT
        
        12 b 6 can be raised after in the form of a defense
        
        A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.
      - Prevents having to respond to substantive allegations of complaint
      - 12g and h place limitations
    - - must respond to substantial allegations of complaint
      - state counterclaims
        
        CAN LEAD TO REPLIES
      - DENIALS
        
        Overly general denials can lead to rule 11 sanctions
        
        RULE 8B denials
        
        must be in good faith
      - affirmative defenses
        
        Rule 8C
        
        defendants bear burden of persuasion at trial
      - judge can order replies to answers with rule 7a
    - - failing to respond leads to a default judgment being entered against them
  - - - (a) Amendments Before Trial.
        
        (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
        
        (A) 21 days after serving it, or
        
        (B) 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), (e), or (f), whichever is earlier.
        
        (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
        
        (3) Time to Respond. Unless the court orders otherwise, any required response to an 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.
      - (b) Amendments During and After Trial.
        
        (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. 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. The court may grant a continuance to enable the objecting party to meet the evidence.
        
        (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. But failure to amend does not affect the result of the trial of that issue.
      - (c) Relation Back of Amendments.
        
        (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:
        
        (A) the law that provides the applicable statute of limitations allows relation back;
        
        (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
        
        (C) 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 provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
        
        (i) received such notice of the action that it will not be prejudiced in defending on the merits; and
        
        (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.
- - - - 1.Same Claim? Is the current claim the same as a claim raised in the prior action?
        
        a. Identical Claims
        
        Identical claims are precluded and cannot be brought
        
        b. Transactionally Related Claims- STO
        
        claims that are closely related in the transaction or occurrence of the already litigated claim are also precluded
        
        Restatement second of Judgments
        
        (2) What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage
        
        Common core of operative facts
      - 2.Same Parties? Does the current action involve the same parties that were party to and adversaries in the original action?
        
        a. Identical Parties
        
        Parties must be the same in order for claim preclusion to occur.
        
        b. Parties in Privity- Relationship listed in Taylor v. Sturgell
        
        A claim cannot be precluded if the previous litigant is a different party and there is no legal relationship between the current and past litigants.
        
        relationships
        
        adequate representation by someone with the same interests who was a party (trustee, guardian)
        
        a party assuming control over prior litigation
        
        preexisting substantive legal relationship
        
        a party who loses an individual suit then sues again, this time as the representative of a class
        
        agreement by parties to be bound
        
        special statutory schemes such as bankruptcy and probate proceedings, provided they provide due process
      - 3.Final Judgment? Was the prior action concluded by a final judgment on the merits?
        
        a. Judgments for Plaintiff – automatic
        
        b. Judgments for Defendant- All except for those dismissed for lack of personal jurisdiction, improper venue, failure of service or failure to join a party under Rule 19
        
        usual rule is that a judgment is final even though an appeal is pending
        
        stages
        
        Summary judgment --- yes preclusive
        
        Dismissal after Rule 12b6 failure to state a claim --- yes and no depending on if claim is fully represented
        
        judgment as matter of law--- yes preclusive
        
        Dismissal for 12b2 motion for want of personal jurisdiction - no not preclusive
        
        full jury trial --- yes preclusive
        
        Dismissal for failure to prosecute --- no not preclusive
        
        federal district court must not give claim preclusive effect to state judgment regarding federal laws that are within the exclusive jurisdiction of the federal courts.
        
        On the merits (if actually the case) means final judgment preclusion generally
  - - - 1.Same Issue? Is the issue raised in the prior action identical in all respects to the issue raised in the current action?
        
        civil and criminal proceedings operate under different standards of proof and are not the same issue
        
        word or phrase definitions can have different meanings in different contexts and may not issue preclude
      - 2.Actually Litigated and Determined?
        
        issue must actually be litigated to be issue precluded
      - 3.Necessary to the Judgment?
        
        a. Outcome Determinative
        
        If the judgment in a prior action could have been based on either of two different facts, a party seeking to apply issue preclusion to one of those facts in a later action must show that the prior judgment could not have been rendered without deciding that fact.
        
        if outcome is general and issue not decided, issue will not be precluded
        
        b. What if a judgment rests on multiple grounds (if either holding had been left out, outcome would be the same anyway)
        
        Restatement of Judgments 1 All litigated and decided issues precluded from relitigation
        
        Restatement of Judgments 2 No issues precluded if judgment rests on alternative grounds
      - 4.Nonmutual- It requires litigation by the party against whom it is to be used.
        
        a. Exceptions- unfairness
        
        The offensive use of collateral estoppel may be unfair to a defendant in cases where the defendant was sued for nominal damages in the first action and did not vigorously defend, denied certain procedural advantages in the first action, or where the judgment relied upon as a basis for the estoppel is inconsistent with one or more previous judgments in the defendant’s favor. However, despite the potential for unfairness to the defendant, trial courts should be granted broad discretion to determine when offensive collateral estoppel should be applied. Therefore, where a plaintiff could easily have joined in the earlier action or application of offensive estoppel would be unfair to the defendant, a trial judge should not allow the use of offensive collateral estoppel.
        
        1.Inconsistent Decisions
        
        2.Could’ve easily joined (“Wait and See”)
        
        3.Lacked Motivation due to amount
        
        4.First venue had limited procedure or very inconvenient
        
        requirements of due process of law forbid the assertion of a plea of issue preclusion against a party unless he was bound by the earlier litigation in which the matter was decided. He is bound by that litigation only if he has been a party thereto or in privity with a party thereto. There is no compelling reason, however, for requiring that the party asserting the plea... must have been a party, or in privity with a party, for earlier litigation.
        
        if plaintiff wins case, another plaintiff can use claim preclusion on the same issues for a separate case. However, if the defendant wins first case, issue cannot be precluded for a different plaintiff as they have not had the opportunity to litigate the issue