I.

Fed. Rule 4 Summons: a. Fed. Rule 4.c. - Service: 1. Fed. Rule 4.c.1. - In addition to filing her complaint, the must also arrange to have process served on the . 2. Or the under Fed. Rule 4.d. the may waiver service of process b. Fed. Rule 4.k.1.B. provides for the Bulge Rule Fed. Rule 5 Serving and Filing Pleadings and Other Papers: Fed. Rule 6 Computing and Extending Time; Time for Motion Papers: a. Fed. Rule 6.a. - Computing Time : 1. Fed. Rule 6.a.1.- Day of the Event Excluded- makes it clear that the day of the event that triggers the relevant period (i.e.: service of process) is NOT included in that period. 2. Fed. Rule 6.a.2. Exclusions From Brief Periods. - If the time being measured is less than 11 days, then Saturdays, Sundays and legal holidays are NOT included. 3. Fed. Rule 6.a.3. Last Day - states that if the last day of the period falls on a Saturday, Sunday or legal holiday, the act my be performed on the next business day. 4. Fed. Rule 6.a.4. Legal Holiday Defined. provides list of recognized legal holidays b. Fed. Rule 6.b. Extending time allows a party to move for an extension of time in which she is required to do something. Fed. Rule 7 Pleadings Allowed; Form of Motions and Other Papers: a. Fed. Rule 7.a. - Pleadings - provides list of the only pleadings that are allowed. 1. Pleadings defined = documents in which claimant set forth their claims and defending parties respond to the claims and raise defenses. 2. Purpose of Pleadings = inform the other parties of each partys contentions. 3. Fed. Rule 7.a. list provides a list of 7 acceptable pleadings, but 3 basic pleadings (in a typical 2-party case): i. Complaint Fed. Rule 7.a.1. ii. Answers Fed. Rule 7.a.2,3,4 and 6. iii. Reply Fed. Rule a.7. 4. When a party makes a motion to enter a particular order that is not considered a pleading. i. Fed. Rule 7.a.1. entitles a to file a complaint against a ii. Fed. Rule 7.a.2. entitles a to an answer to respond to a who has filed a complaint against them. iii. Fed. Rule 7.a.3. entitles a to an answer to respond to a who raises a counterclaim in his answer against the . iv. Fed. Rule 7.a.4. entitles a to an answer to respond to another on a crossclaim. Fed. Rule 7.a.5. entitles a party to file complaint against a 3rd party v. vi. Fed. Rule 7.a.6. entitles 3rd party to an answer to respond to the 3rd party claim. Fed. Rule 7.a.7. if the court so orders it, a reply to an answer. vii. b. Fed. Rule 7.b. Motions and Other Papers 1. Fed. Rule 7.b.1. In General- If a party wants the court to make an order, the party MUST file a Motion i. Fed. Rule 7.b.1.A. Motion must be in writing (unless made during hreaing/trial) ii. Fed. Rule 7.b.1.B. Motion must state with particularity why she is seeking the order. 2. Fed. Rule 7.b.2. Form The same rules of captions and other matters of form in pleadinds apply to motions and other papers. Fed. Rule 8 General Rules of Pleadings a. Fed. Rule 8.a. Claim for Relief

II. III. IV.

V.

VI.

1.

2.

3.

Introductory Notes: i. Fed. Rule 8.a. Although this rule usually applies to the , it can also apply to the if the files a counter claim against the . ii. Sets forth 3 requirements of any s complaint (aka claim of relief) (will discuss in further detail below) a. Fed. Rule 8.a.1.- Statement of the grounds of subject matter jurisdiction b. Fed. Rule 8.a.2. - Statement of the claim c. Fed. Rule 8.a.3. - Demand for the relief sought iii. Lacking any of these 3 requirements, the s compliant will be dismissed usually without prejudice a. without prejudice = the will be allowed to file an amended complaint in which she corrects the problem iv. Fed. Rule 8 does not contain the word complaint in it but gives the rules for the assertion of any claim. a. Rule 8 also applies to counterclaims, cross claim and 3rd party claims Fed. Rule 8.a.1. i. Requires the to provide a short and plain statement of the grounds for the fed courts jurisdiction. ii. Refers to subject matter jurisdiction NOT personal jurisdiction a. 28 U.S.C. 1331 Federal Question b. 28 U.S.C. 1332 Diversity of Citizenship iii. Since the has the burden of showing that her claims can be proven in federal court, she must satisfy Rule 8.a.1.first. iv. The word resides should NEVER be used when pleading Diversity of Citizenship a. It is the parties citizenship that is relevant to a diversity claim i. Residence is relevant to Venue. Fed. Rule 8.a.2. i. Requires the to make her statement of the claim a. If a s complaint does not state a claim, the court may dismiss the case on its own without a motion by a party. b. If a s complaint states several claims and one is defective, the court may simply dismiss the defective claim. i. Dismissal of this claim is usually without prejudice which allows the to try again to state a legally sufficient claim ii. A s complaint can be attacked for 2 different types of insufficiency: Legally insufficient & Factually insufficient: iii. Legal Sufficiency: a. To determine if the complaint is legally sufficient, the court looks only to the face of the s complaint NOT at any evidence. i. The court asks: if the proved everything she has alleged here, would win? 1. In other words, does the law recognize a right to recover on the facts she has alleged? ii. If the answer in NO, litigation should cease because it would be a waste of the s and Courts time. iii. If the answer is YES, litigation should continue to see whether the indeed can demonstrate what she has alleged. 1. This does NOT mean the wins but simply that the case can go forward to the next stages of the litigation stream. b. The issue is not whether the will ultimately prevail but whether she is entitled to offer evidence to support her claims c. If it becomes clear that the cannot state a legally sufficient claim the court will dismiss the complaint with prejudice

Factual Sufficiency: a. To determine if the complaint is factually sufficient, the court looks to see whether the has alleged enough to justify having the case proceed in the litigation stream. b. A compliant should not be dismissed for failure to state a claim unless it appears beyond doubt that the can prove no set of facts in support of his claim which would entitle himto relief 4. Fed. Rule 8.a.3. i. Requires the to make her demand for the relief sought a. aka Prayer for relief i. OR ad damnum when seeking $$ relief. ii. If demands monetary relief, damages are usually pleaded as a lump sum a. Except when asking for special damages (which the must plead in detail) b. is NOT required to plead a specific amount c. If a asserts the min amount of controversy of $75K in her Diversity of Citizenship claim, the court could change it for more or less during the trail. iii. can also demand equitable relief. a. Types of equitable relief: i. Injunction ii. Declaratory judgment iii. Rescission iv. Reformation v. Specific performance iv. s recovery is NOT limited by what she seeks in her demand for judgment a. Fed. Rule 54.c. (Fed. Rule 54- Judgment; Costs) makes it clear that the is entitled to recover whatever amount and whatever type of relief shown appropriate at trial, regardless of what she asked for in the demand. i. EXCEPTION also found in Fed. Rule. 54.c.: 1. In cases of default judgments , the cannot recover more (or a different kind of relief) than she sought in her demand for judgment b. Fed. Rule 8.b. Defenses; Admissions and Denials: 1. Introductory notes: i. Fed. Rule 8.b. Provides for the s answer to the complaint a. Although this rule usually applies to the , it can also apply to the if the files a counter claim against the and the must respond. ii. has 2 options of responding: a. By Motion (as discussed in Fed. Rule 12) i. Motion pleading b. By Answer i. Answer = pleading ii. In an Answer, the must accomplish 2 goals: 1. must respond to each allegation in the complaint a. Guidelines are found in Fed. Rule 8.b (this rule) 2. must raise affirmative defenses a. Guidelines are found Fed. Rule 8.c.(discussed below) iii. Fed. Rule 8.b.1.A & Fed. Rule 8.b.5- tell the that there are 3 possible responses to the s allegations. The can: 1. Admit the allegations 2. Deny the allegations 3. Say lacks sufficient information on which to admit or deny.

iv.

2.

3.

4.

5. 6.

iv. Those 3 possible responses must be assessed against the serious consequences of Fed. Rule 8.b.6. The failure to deny an allegation in the compliant is considered an admission of that allegation. iii. Fed. Rule 11 of severe importance to this Rule. Fed. Rule 8.b.1. In General- provides what the responding pleading must contain: Fed. Rule 8.b.1.A. a short and plain terms its defenses to each claim asserted i. against them. ii. Fed. Rule 8.b.1. B. admit or deny the allegations asserted against it by the opposing party. a. 1st Type of Response = Admitting: i. The may simply admit various allegations because there certain allegations that the can NOT deny in good faith. 1. As Rule 11 requires, a party (and a lawyer) may not make unsupported assertions. a. I.e.: It would be a violation for the party to deny an allegation that the party (or lawyer) knows to be true ii. Admitting certain issues establishes points in an allegation as facts that do not need to be adjudicated nd b. 2 Type of Response = Denial: i. Under the Fed. Rule 8.b.2. warnings (below) and the Fed. Rule 11 guidelines, the should respond in the preferred way by admitting what can be expressly admitted and to deny the remainder of the paragraph. ii. Negative Pregnant = occurs when a denial is so specific that it leaves open the possibility that the allegation may byre true in a slightly different respect. iii. Conjunctive Denial = occurs when a party denies doing A, B and C, thus leaving the possibility open that they did only 1 or 2 of the three things rather than all of them. Fed. Rule 8.b.2. Denials- a denial must respond fairly to the complaint allegations. i. This tells the to keep it simple a. Dont get argumentative b. Dont inject new facts c. Just deny it. Fed. Rule 8.b.3. General & Specific Denials: i. First sentence A party can respond by a general denial when they are sincere and truly applicable to the entirety of the paragraphs to which they apply. a. Parties need to keep Fed. Rule 11 in mind as its almost unlikely/super rare that a can properly use a general denial and in good faith, deny every allegation of the complaint. i. If there is anything in the complaint that should be admitted, the should admit it. ii. Second sentence instruct that when a party intends to deny only part of an allegation, she must either specifically deny designated allegations or generally deny all th allegations except those specifically admitted. Fed. Rule 8.b.4. Denying part of an Allegation: a party who in good faith denies only a part of an allegation, MUST admit the part that is true and deny the rest. Fed. Rule 8.b.5. Lacking Knowledge of Information: i. 3rd Type of Response = Saying that lacks sufficient information: a. If a party lacks information that would enable it to admit or deny a particular allegation, the party is allowed to plead that there are without sufficient information to form a belief as to the truth of the allegation. ii. This has the effect of a denial.

Under Fed. Rule 11, the cannot use this 3rd response approach if: a. I.e.: she is in possession of the relevant information or if the matter alleged is something of public record iv. Availability of Info Hypos: a. If the alleges something as to which the has no precise recollection, the cannot simply use Rule 8.b.5. to deny it i. The must attempt to find the answer and then and only then if its appropriate, to the deny itBUT b. If the alleged something that is really beyond the s knowledge and information, the may use Rule 8.b.5 which will then be deemed as a denial. 7. Fed. Rule 8.b.6. Effect of Failing to Deny: i. If an allegation is not denied, it will be deemed an admitted allegation. c. Fed. Rule 8.c. Affirmative Defenses: 1. Introductory notes: i. In addition to responding to the allegations of the complaint, the will also assert affirmative defenses in the answer. ii. As governed by Fed. Rule 8.b.2. the should not inject new facts in his response. iii. However, when the invokes affirmative defenses, they are injecting new facts into the dispute. a. Affirmative Defense = a material addition to what the alleged in her complaint which if true, entitles the to judgment. It is a justification or excuse that would absolve the of liability to the , even if the s claim is proven. 2. Fed Rule 8.c. the must affirmatively state ANY affirmative defenses that may exist including any of the 19 that are listed. i. This means the has the burden of proving the affirmative defenses at trial and thus the Rules give the s the obligations of pleading them in their answers. 3. Fed. Rule 8.c.1. Lists 19 classic affirmative defenses (but is not an exhaustive list) that the must allege in the answer if she intends to raise them at all. i. Each affirmative defense is an example of how the can inject new facts to the case and avoid liability. a. Self-defense is not in Fed. Rule 8.c. but it IS an affirmative defense. ii. Failure to assert an affirmative defense = problems for the : a. UNLESS the court allows the to amend its pleading to include previously not pleaded affirmative defenses and present evidence on them, the s failure to assert an affirmative defense can: i. Lead to the defenses being effectively waived OR ii. Result in the being barred from introducing evidence on those defenses. b. Rationale behind this rule: i. should not be able to ambush the with defensive arguments that are not the natural outgrowth of the s claim. ii. If the is not notified of the s affirmative defenses, then the will not be able to prepare and present its case in a way that address those defenses. iii. Equation for Affirmative Defenses. a. will win if A + B +C are proven as true unless the establishes an affirmative defense. i. has the burden of proving the ifs ii. has the burden of pleading the unless. iv. Exceptions to this Rule: a. Claim for Defamation b. Claim for nonpayment of Debt iii.

d. Fed. Rule 8.d. Pleading to Be Concise and Direct; Alternative Statements; Inconsistency: 1. Fed. Rule 8.d.1. In General2. Fed. Rule 8.d.2. Alternative Statements of a Claim or Defense: i. Permits the to plead alternative or inconsistent allegations a. The must do so under the obligations found in Fed. Rule 11.b. 1-4 ii. Permits the to plead alternative or inconsistent defenses (in response to s complaint) a. The must do so under the obligations found in Fed. Rule 11.b. 1-4. 3. Fed. Rule 8.d.3. Inconsistent Claims or Defenses: i. Regardless of the inconsistency, a party is permitted to list as many claims or defenses as it has available to them. VII. Fed. Rule 9 Pleading Special Matters: a. Fed. Rule 9.b. Fraud or Mistake; Conditions of Mind- imposes a heightened pleading burden for allegations of fraud or mistake. 1. When fraud/mistake is alleged, a party must state with particularity the circumstances constituting fraud or mistake. i. Detailed evidence is not required. Only that there is sufficient information which identifies the fraud/mistake circumstances such that the will be able to form a respond. b. Fed. Rule 9.g. Special Damages1. If party is seeking special damages, the damages must be specifically state in order to be claimed. i. Special Damages = Damages that are not natural or an inevitable result of injuries that are included in the complaint ii. Purpose of having this requirement: To protect opposing parties from being surprised at trial by claims of damage that would not ordinarily be the foreseeable result of the alleged events.

VIII. Fed. Rule 10 Form of Pleadings: a. This rule gives general guidance for the form of all pleadings b. Fed. Rule 10.a. Caption; Names of Parties concerns with form of all the pleadings and requires that each party must have a caption with the courts name, a title, a file number, and a Rule 7.a designation (type of pleading) c. Fed. Rule 10.b. Paragraphs; Separate Statements - requires the party to set forth her allegations in numbered paragraphs, each limited as far as practicable to a single set of circumstances d. Fed. Rule 10.c. Adoption by Reference; Exhibits provides that parties may attach a written in instrument as an exhibit to a pleading, and that the instrument thus is considered a part of the pleading for all purposes. 1. BOTH Fed. Rule 10.b & Fed. Rule 10.c- expressly allows a party to make a reference in later documents to those paragraphs in the pleading IX. Fed. Rule 11 Signing Pleadings, Motions and Other Papers; Representations to the Court; Sanctions a. Fed. Rule 11.a. - Signature 1. Every document (pleading, written motion or other papers) MUST be signed by at least 1 attorney of record and must state the signers address, e-mail address and telephone number. 2. Provides that unless a rule or statute specially states otherwise, a pleading does not need to be verified or accompanied by an affidavit. i. verified pleading = a pleading that is executed under penalty of perjury ii. Which means = parties are not required to plead under oath.

Pleadings can be executed on the basis of the best information and belief of the parties b. Fed. Rule 11.b. Representations to the Court- whenever a party presents a pleading, written motion or other paper to the court, the attorney (or party themselves if no attorney represents them) they are certifying that to the best of their knowledge and ability, what they are presenting to the court pertains to ALL of the following: 1. Fed. Rule 11.b.1. is not presented for an improper use 2. Fed. Rule 11.b.2. the legal contentions are warranted to by existing law or by nonfrivolous arguments seeking to extend, modify or reverse existing law 3. Fed. Rule 11.b.3. the factual contentions have evidentiary support OR will likely have evidentiary support after a reasonable opportunity for further investigation or discovery 4. Fed. Rule 11.b.4. the denials of factual contentions are warranted on the evidence OR are reasonably based on belief of lack of information. c. FedRule11.c. Sanctions - Provides that if the court determines that that an attorney or a client has violated any of the representations (Fed. Rule 11.b.1-4 above) , they may impose appropriate sanctions on them 1. A law firm will be held jointly responsible for a violation made by its partner, associate or employee. X. Fed. Rule 12 Defenses & Objections: When and How Presented; Motion for Summary Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pre-trial Hearing a. Fed. Rule 12.a. Time to Serve a Responsive Pleading: 1. General Gist: The must respond to the s complaint in the prescribed way within a given period, or else risks losing by a default judgment. b. Fed. Rule 12.a.1- In General. imposes the general requirement that the respond within 20 days after being served with process. 1. The has a choice on how to respond to the complaint BUT the must either serve an answer or serve a motion under Rule 12 within 20 days after being served with process because either answer or motion will obviate the risk of default. i. Fed. Rule 12.a.1.A & Fed. Rule 12.a.1.A.i deal with the timing for an Answer ii. Fed. Rule 12.a.4. deal with the timing for a Motion 2. Fed. Rule 12.a.1.A. & Fed. Rule 12.a.1.A.i. = Answer & Timing: i. Answer = Responsive Pleading replies to the merits of the allegations raised by the opposing party and raises affirmative defenses. ii. Benefit: Filing by answer first could buy the more time to develop facts supporting a particular motion to dismiss. iii. Fed. Rule 12.a.1.A.ii. a. If waives service of process under Rule 4.d. this rule permits the to serve an answer within 60 days after the sent the waiver form to the . b. If the is outside any US judicial district, the has 90 days to answer after he was served process. 3. Fed. Rule 12.a.4. Effect of a Motion = Motion & Timing i. Important notes: a. Motion = a partys request to the court that the court do something/enter a particular order. b. Benefit: Filing a motion first could result in dismissal of the case thereby obviating the need to draft and answer at all ii. Fed. Rule 12.a.4 provides that serving a motion under this rule changes the time in which to serve the answer. iii. Motion Pleading so the phrase responsive pleading in Rule 12.a.1.A.refers ONLY to the answer. a. Fed. Rule12.a.4.A. if the responds to the complaint by motion, and the court denies the motion (or postpones its disposition), the MUST serve his

iii.

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d.

e.

f.

g.

answer within 10 days after being informed of the courts ruling on his motion. Fed. Rule 12.b. How to Present Defenses Provides a list of 7 defenses which the may choose to raise in either her answer (aka affirmative defense) or by motion. 1. The most important thing to remember about Fed. Rule 12.b defenses are the waiver provisions of Fed. Rule 12.g and 12.h. (see below) Fed. Rule 12.c. Motion for Judgment on the Pleadings. permits the to file a motion for judgment on the pleadings. 1. This is the same as a Fed. Rule 12.b.6 motion and the same standards apply. The difference? i. Fed. Rule 12.b.6.= is filed BEFORE the has served his answer ii. Fed. Rule 12.c = is filed AFTER the has served his answer 2. When a Fed. Rule 12.c. motion is made, the court will take all the allegation of the complaint as true and determine whether they state a legally cognizable claim. Fed. Rule 12.e. Motion for a More Definite Statement. Permits the to bring a motion for more definite statement 1. This motion addresses a complaint that is so vague or ambiguous that the party cannot reasonably prepare a response 2. This motion does NOT address legal or factual sufficiency (like a 12.b.6. motion) but is instead aimed at a complaint that simply cannot be understood. 3. The s 12.e. motion must point out the defects complained of and the details desired. 4. The must make the 12.e. motion BEFORE answering. 5. If the court grants the 12.e. motion, the has 10 days in which to provide her pleading with more clarity. i. Under Fed. Rule 12.a.4.B. - The then has 10 days from when he was served with the s newly clarified complaint, to respond. 6. A 12.e. motion can only be used to challenge a pleading to which a responsive pleading is allowed. Fed. Rule 12.f. Motion to Strike BOTH and are permitted to use this motion where the court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter. 1. Insufficient Defense = insufficient as a matter of law or a may have failed to allege it with sufficient factual detail. 2. Redundant, immaterial, impertinent = material that is extended to great, unnecessary, or tedious length. 3. Scandalous matter = could lead the parties to ridicule, either to the jury or to the public. i. Where an allegation of outrageous behavior may be relevant to a claim, unduly derogatory allegations may be stricken. Fed. Rule 12.f.2. Motion to Strike: ii. Requires that the make this motion BEFORE responding to the complaint iii. Requires the to move to strike within 20 days after being served with the s response. iv. This Rule also provides that the court can strike on its own 4. Motion to Strike is disfavored because it is often used simply to delay proceedings and is rarely granted Fed. Rule 12.g. Joining Motions: 1. Fed. Rule 12.g.1. - states that can join as many defenses as it has available t them i. Multiple motions in their response is permissible. 2. Fed. Rule 12.g.2. requires a who makes a motion under Rule 12, to join in that motion, a defense or objection that was available to the party but omitted from its earlier motion. i. In other words, if the omits from the first motion some Rule 12 defense that is available to her at that time, she cannot make a second Rule 12 motion. a. Unless Fed. Rule 12.h.2 and 12.h.3 exceptions apply

In other words, omitting a Rule 12 defense from Rule 12 motion waives the right to bring a second motion under Rule 12. a. Unless Fed. Rule 12.h.2 and 12.h.3 exceptions apply h. Fed. Rule 12.h. Waiving and Preserving Certain Defenses: 1. Fed. Rule 12.h. When Some are Waived - Requires the to assert Fed. Rule 12.b.2., 12.b.3., 12.b.4 and 12.b.5 in her FIRST RESPONSE or in her motion because if omitted, the defenses will be waived. a. 12.b.2 - Lack of personal jurisdiction b. 12.b.3. - Improper venue c. 12.b.4. - Insufficient Process d. 12.b.5. - Insufficient service of process ii. This means that if the chooses to file a Rule 12.b motion as her first response, she MUST assert these 4 defense, otherwise, she WIAVES them. iii. If the s first response is an answer, she MUST also assert these 4 defense, otherwise, she WAIVES them. iv. Principle #1: These defenses MUST be put in the first defensive response under Rule 12 (whether answer or motion). a. Reason: These 4 defenses are threshold issues which ought to be determined at the outset of the case. b. Since they are waivable, the burden is on the to raise them in her first Rule 12 response (answer or motion) or else the will lose them. 2. Fed. Rule 12.h.2. When to Raise Others. States that if asserts a Fed. Rule 12.b.6 or a 12.b.7. defense, they are NOT required to raise these defenses in the s first response. a. 12.b.6. failure to state a claim for which relief can be granted b. 12.b.7. failure to join a party ii. Principle #2: These defenses may be raised anytime before entry of judgment by the trial court a. This means that the can raise these defenses at anytime through the end of trial. 3. Fed. Rule 12.h.3. Lack of Subject Matter Jurisdiction states that a Fed. Rule 12.b.1 motion can be raised at any time, even on appeal. (12.b.1. lack of subject matter jurisdiction ) i. Principle #3: This defense may be raised at any time. a. Policy behind this principle: limited subject matter jurisdiction is a matter of governmental structure so if a case does not invoke federal subject matter jurisdiction, a federal court must dismiss, even if it has invested years in the case under the incorrect impression that it had subject matter jurisdiction. XI. Fed. Rule 13 Counterclaim and Cross Claim: a. Introductory Notes: 1. There are 3 different types of test to distinguish compulsory counterclaim from permissive counterclaims: 1. Logical relationship- when looking at 2 claims makes sense to bundle them together. a. If you can, then the test is satisfied. 2. Overlapping evidence Test- will some or all evidence used to support/oppose the s claim also be used to support/oppose the s counterclaim a. If yes, then the test is satisfied 3. Overlapping factual issue test: a. Ask: What are the factual issues in dispute to the s claim and then ask what are the factual issues in dispute in the s counterclaim. i. If there are nay overlapping issues, then the test is satisfied. b. Fed. Rule 13.a. Compulsory Counterclaim: 1. Review Clark v. Associate Class- Handout

ii.

c. Fed. Rule 13.b. Permissive Counterclaim: 1. A counterclaim is permissive when it does not arise out if the same transaction or occurrence. i. Permissive = party can assert it but they are not required. d. Fed. Rule 13.g. Crossclaim against a Co-Party: 1. A claim has to meet 2 important requirements in order to be a Crossclaim: i. Claim is against a co-party a. Co- party = multiple parties on either side of the case are co-parties to each other. ii. Claim against the co-party must arise for the same transaction or occurrence as the original action or of a counterclaim therein. 2. To be a crossclaim, the claim must be transcationally related to the underlying dispute between the and . 3. Rule 13.g. = PERMISSIVE i. may a party is not required to file a crossclaim in the pending case. ii. There is NO such thing as a compulsory crossclaim a. vs. the existence of a compulsory counterclaim. 4. Last Sentence: provides that a crossclaim may include an assertion that the co-party is or may be liable for all or part of the claim against the party asserting the cross claim i. This means that a crossclaim can include a claim against a co-party thats that coparty is liable for indemnity or contribution on the s claim. e. Fed. Rule 13.h. Joining additional parties: permits a to join a new party to its counterclaim or crossclaim, SO LONG as the party joined satisfied either Rule 19 or Rule 20 XII. Fed. Rule 14 3rd Party Practice (aka Impleader): a. Introductory notes: 1. Only a defending party can join an absentee through impleader 2. Important definitions: i. Defending party = is party whom claim has been asserted against a. Remember that a can be a defending part when counterclaims. ii. Defending party asserting impleader = 3rd party iii. Absentee joined by impleader = 3rd party 3. Difference between Impleader and Crossclaim i. Impleader = asserted by a party against a co=party a. Arises in cases for indemnity/contribution ii. Crossclaim = asserted by a party against an absentee a. Arises out of the same transaction or occurrence b. Fed. Rule 14.a. When a defending party may bring in a 3rd party: 1. PIG PICTURE: This Rule creates 3 claims: i. The impleader claim under Rule 14.a.1. asserted by a defending party against the absentee (TP ) who may owe her indemnity/contribution ii. The up-sloping 14.a. claim asserted by the against the absentee (TP ) under the Rule 14.a.3. iii. The down-sloping 14.a. claim asserted by the absentee against under Rule 14.a.2.D. TP 14.a claim(s) 13.a Original Claim Impleader Claim

Fed. Rule 14.a.1. Timing of the summons and Complaint: i. First sentence: permits a party who claims a right of contribution or indemnification from a 3rd party to protect itself from potentially inconsistent verdicts by impleading/suing an absent party a. The language =discretionary/PERMISSIVE, not mandatory (may v. must) ii. Last sentence: states that a defending party (aka 3rd party ) has a right to implead within 10 days after she serves her original answer to the s complaint. a. Beyond 10 days, the 3rd party must make a motion seeing court permission to implead. 3. Fed. Rule 14.a.2. 3rd party s Claims and Defenses: i. Permits a TP to assert a claim against and the claim must arise out the same transaction or occurrence as the underlying dispute. a. Fed. Rule 14.a.2.D. permits TP to assert a claim against if it arises from the same transaction or occurrence as the underlying dispute i. may = PERMISSIVE. 4. Fed. Rule 14.a.3. s Claims against 3rd party : permits the to assert a claim against the TP i. Claim must arise out the same transaction or occurrence as the underlying dispute. ii. Rules says may = PERMISSIVE c. Fed. Rule 14.b. When a may bring in 3rd party: allows a which has been counterclaimed, to implead. 2. XIII. Fed. Rule 15 Amendments and Supplemental Pleadings: a. Introductory Notes: 1. Amendments = Any change to any part of a pleading which can pertain to both/either legal issues or factual mattes. i. Once they are changed, amendments supersede the original pleadings. 2. Modern pleading provisions = liberal in allowing parties to amend their pleadings. 3. Dual rule: party is interchangeable between and depending on the portion of the rule. b. Fed. Rule 15.a. Amendments Before Trial: allows pleadings to be amended or supplemented before the trail and address 2 kinds of amendments: as matter of course & permissive amendments 1. Fed. Rule 15.a.1. Amendments as Matter of Course: provides that a may amend once before: i. Fed. Rule 15.a.1.A. before party receives a responsive pleading a. This rule defines when the has a right to amend ONCE before the is served with a responsive pleading i. 3 cautions with this Rule: 1. There is NO time limitation in this Rule; the right to amend is cut off by the act of the (file his answer) 2. There is a right to amend only ONCE; a 2nd amendment, even if attempted before the responds, can ONLY be made with the courts permission. 3. The service of the responsive pleading cuts off the right to amend. ii. Although this rule typically refers to a , a who asserts a counterclaim would also have a right to amend his counterclaim and ii. Fed. Rule 15.a.1.B. within 20 days after serving the pleading if a responsive pleading is not allowed and is not yet on the trials calendar. a. This rule defines when the has a right to amend ONCE within 20 days after serving her answer. i. 2 cautions with this Rule:

1. It can only be amended once; a 2nd amendment, even if attempted within the 20 days , she must seek leave of court 2. The right to amend is cut off by the passage of days and NOT by the act of another party. b. Although this rule typically refers to a , a who answers a s counterclaim would also have a right to amend her responsive pleading under this Rule. 2. Fed. Rule 15.a.2. Other Amendments (aka Permissive Amendments): i. Provides that a party may amend ONLY if the opposing party consents in writing OR if the court grants leave to amend. a. Applies in all cases in which there is no right to amend, and the leave of the court is required. b. The court is not required to permit all amendments in all cases: i. Rather the court evaluates the totality of the circumstances, balancing the interests of both parties to determine whether justice would be furthered by permitting the amendment. ii. This standard reposes great discretion in the District Court judge and indicates a preference for permitting amendments. 3. Fed. Rule 15.a.3. Time to Respond: says that whenever the amends (either by right or permissive amendment), the defending party must respond within the time remaining to respond to the original pleading OR within 10 days after service of the amended pleading (unless the court orders otherwise) i. Time remaining = the time set forth in Rule 12. a. This is usually 20 days from the date of service so unless the court orders otherwise, the will never have fewer than 10 days after service of the amended complaint in which to respond. c. Fed. Rule 15.b. - Amendments During and After Trial: 1. Introductory Notes: i. This rules becomes relevant, if ever, only at trail. ii. Specifically, it only comes when a party seeks to introduce evidence at trial of a claim of defense that she did not plead. iii. Although the rule does not say so expressly, this are variances: iv. Variances = someone is trying to put evidence of something that she did not plead. a. may be seeking to put evidence of a claim she did not include in complaint b. may be seeking to put evidence of an affirmative defense not in answer. v. Rule 15.b = modern day way of treating variances. vi. Variance = basis for objection by the other party at trail. a. In other words, when a party (either / ) seeks to introduce evidence at trial that goes beyond the scope of her pleadings, the other party may object and ask that court to exclude the evidence, so it will not be a part of the litigation of the trial record the fact-finder considers in reaching their conclusion. vii. When faced with a variance, the other party can do 1 of 2 things:15.b.1/15.b.2: 2. Fed. Rule 15.b.1. Based on an Objection at Trial: a. One Variance Scenario: the other party may object to the variance. i. Here, the court is concerned with the possibility of amending the pleadings at trail. ii. In other words, if one party introduced evidence beyond the scope of the pleadings and the other party objects and asserts that the evidence should be excluded at trial, and the court agree with the other party, then the court will uphold the other partys objection and bar the introduction of the evidence at trial. b. First Sentence: However, provides that when the non-proffering party objects to the introduction of evidence from the party proffering it on the ground of variance, the court may permit the pleadings to be amended.

i. In other words, despite the fact that the variance points out a deficiency in the pleading of the party proffering the evidence (and that its so late in the game), the proffering party might still be able to amend her pleadings to cover the issues raised by the evidence she is proffering at trial. c. Second Sentence: provides the standard for allowing to amend: i. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that partys action or defense on the merits 1. This standard demonstrates how LIBERAL the rules for amendments are. a. This is a rare amendment. 2. The burden to show prejudice = on the proffering party d. Last Sentence: reminds the court that it can enter a continuance of the trail to allow the objecting/non-proffering party to do what she needs to do in order to respond to the evidence presented by the proffered party. 3. Fed. Rule 15.b.2. For Issues tried by Consent: a. Another Variance Scenario: the other party may agree to allow the variance i. Here, the court is concerned with conforming the pleadings to the evidence. b. First sentence: provides that when the other party agrees to allow the evidence, the issues address interest hat evidence MUST be treated in ALL respects as if raised in the pleadings. i. Essentially, the variance is ignored , the evidence is admitted at trail and the pleadings are treated as though they had originally included the issues raised by the evidence. c. Second Sentence: provides that 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. d. Last Sentence: provides that failure to move at any time to conform their pleadings with the evidence (failure to do the 2nd sentence) does not effect the outcome of the trial. i. In other words, if the one party introduced evidence beyond the scope of the pleadings and the other party neither objected nor expressly consented, the first party can move to amend the pleadings to conform to that evidence to mirror what was actually litigated at trial. d. Fed. Rule 15.c. Relation Back of Amendments: 1. Introductory notes: i. This Rule deals with amendment of pleadings AFTER the Statute of Limitations has run. ii. The ability of an amendment to relate back to the time filing becomes important where the applicable statute of limitation has expired and relation back is the only way the new allegation will be treated as if it were timely. iii. Relation back avoids the bar of Statute of Limitations 2. Fed. Rule 15.c.1- provides for the amended pleading is treated as though it was filed when the original pleading was filed under limited circumstances ( where the will not be prejudiced) so long as certain requirements are met: a. Fed. Rule 15.c.1.A. deals with an amendment to add a new claim after the statute has expired and provides that relation back apples when the law provides the applicable statute of limitations allows relations

i. Translation = if the law providing the Statute of Limitations also expressly allows relation back of amendments, then there will be relation back. b. Fed. Rule 15.c.1.B. provides for relation back of amendments: i. Relation is permitted if the amended pleadings asserts a claim or defense that arose out of the conduct, transaction or occurrence set out (or attempted to be set out ) by the original complaint. ii. Rationale for this rule: If the amended pleading arises from the same real-world events as the original pleading, the was put on notice of her potential liability before the statute expired. 1. In other words, when an amendment seeks to infuse claims pertaining to a different set of events than those described in the original complaint, the amendment will not relate back. iii. Appropriate use of Relation: 1. When it IS: a. If the amendment being added advocates a new theory of liability arising from the same real-world events alleged in the original complaint. b. If the amendment being added fixes a defective jurisdictional allegation from the original complaint but concerns the same real-world event as the original complaint. 2. When it is NOT: a. If the amendment raises a new matter for which the was not fairly put on notice by the original complaint iv. I.e.: may seek to leave to amend her complaint to add a new claim (or the seeks to raise a new defense) after the statute has run. c. Fed. Rule 15.c.1.C. deals with an amendment to add a new after the Statute of Limitations has already expired. i. Here, the court is concerned that the new is not brought into the case until after the statutory period. ii. This rule allows relation back to bring in the new ONLY when 3 requirements are satisfied: 1. Fed. Rule 15.c.1.C. - The claim arises from the same conduct, transaction, or occurrence as that stated in the original complaint 2. Fed. Rule 15.c.1.C.i. - Within 120 days after filing of the original complaint, the new has received such notice of the suit that she will not be prejudiced in defending. 3. Fed. Rule 15.c.1.C.ii. Within the 120 days the knew or should have known that the action would have been brought against them, but for a mistake concerning the partys proper identity. a. There is basically one class that falls under 15.c.1.C1.ii. sued the wrong originally, but the right knew about the case and knew that, but for a mistake, she would have been named originally. iii. Importance of Fed. Rule 4.m. in Fed. Rule 15.c.1.C: 1. Requirements #1 & 2 (Fed. Rule 15.c.1.C.i and 15.c.1.C.ii.) MUST be met within the Fed. Rule 4.m. 120 day period. 2. Fed. Rule 4.m.- provides service should be effected within 120 days after filing of the complaint.

a. In other words, the only thing that MUST absolutely occur before the Statute of Limitations runs out, is the filing of the complaint. b. So long as the new is put on notice within 120 days after the filing of the complaint, the Rule is satisfied. e. Fed. Rule 15.d. Supplemental Pleadings: 1. Introductory Notes: i. Supplemental pleadings Amended Pleadings a. Supplemental = pleadings that concern the assertion of things that occurred after the pleading was filed. b. Amendment = pleadings that concerns setting forth matters that occurred before the pleading was filed, but that were not discovered (or at least not asserted) until after the pleading. ii. Serve to update the parties and the court on the dispute by bringing to their attention facts that had not occurred when the pleading was filed. 2. First Sentence: i. Although parties have a right to amend their pleadings, parties do not have such a right to supplemental pleadings. a. The matter MUST be raised on motion by the party seeking leave to supplement and the District Court judge has great discretion in determining whether to grant the motion. ii. The pleading sought out to be supplemented must set out any transaction, occurrence or event that happened after the date of the pleading to be supplemented. 3. Second Sentence: i. Provides that if even if the original pleading was defective, this rule permits supplemental pleadings. 4. Last Sentence: provides that the court may order that the opposing party plead to the supplemental pleading within a specified time period. XIV. IMPORTANT Introductory Notes to Joinder of Claims and Parties (Rules [17] & 18-20 & [21]) a. Joinder of claims and parties involves the addition of claims and parties beyond the basic lawsuit that contains only a single and a single . b. Fed. Rules focus mainly on the transaction or occurrence giving rise to the alleged liability. c. Policy reasons for trend of packaging transcationally related parties and claims into a single case: 1. Desire to promote efficiency and consistency and avoids 2. Avoid the possibility of inconsistent outcomes, which can erode public confidence in the justice system. d. Most of the joinder provisions are permissive: 1. Permissive = means that litigants may take advantage of their packaging potential but are NOT red to do so. e. Joinder rules provide procedural tools for joining claims or parties 1. Therefore, they do NOT affect personal jurisdiction, subject matter jurisdiction or venue. 2. However, Joinder provisions have a lot do with Subject matter jurisdiction. f. Subject matter jurisdiction 1. Every claim joined in federal court must be supported by federal subject matter jurisdiction 2. So, for every claim asserted, you must assess whether the claim involves an independent basis (Diversity of Citizenship, Alienage or Federal Question) i. If the given claim does not involve an independent basis of subject matter jurisdiction, then the claim can NOT be asserted in the pending case. g. Supplemental Jurisdiction allows a federal cot to hear a claim over which it does not have one of the 3 major independent bases of subject matter jurisdiction

ONLY available if the claim meets the requirements of Supplemental Jurisdiction Statute under 28 U.S.C. 1367. h. Supplemental Jurisdiction is ONLY relevant for claims over which there is NO Diversity of Citizenship, Alienage, or Federal Question i. Whether a claim can be asserted (or a party joined) requires 3 steps: 1. Is there a joinder provision in the Fed. Rules that allows assertion of this claim/or joinder of this party? 2. If yes to #1, does this claim/joinder of party invoke Diversity of Citizenship, Alienage or Federal Question? i. If yes to #2, it may be asserted in the pending case 3. If no to #2, then can the claim/joinder of party can nonetheless be asserted in federal court because it invokes supplemental jurisdiction? 1. XV. Fed. Rule 17 Plaintiff and Defendant; Capacity; Public Officers: a. Fed. Rule 17.a. Real Party in Interest : 1. Fed. Rule 17.a.1. Designation in General: An action must be prosecuted in the name of the real party in interest. i. RPI = person or entity possessing the right or interest to be enforced through litigation a. Serves a function to similar as the doctrine of standing because RPI ensures that the one who has the legal right being vindicated is the named claimant ii. RPI Non-limitations: a. Fed. Rule 17.a.1: a fiduciary may be the RPI suing on behalf of others i. I.e.: a trustee suing on behalf of trust beneficiaries 2. Fed. Rule 17.a.1.A. G. = list of people who may sue in their own names without joining the person whos going to benefit from the actions success. 3. Fed. Rule 17.a.3. - Joinder of the Real Party in Interest: provides that the court should not dismiss a case that is brought by someone other than the RPI UNTIL it has provided a reasonable time for the to fix /cure the defect. i. In other words, if someone who is an NOT an RPI asserts a claim, the court can not automatically grant dismissal. ii. Fed. Rule 17.a.3. also provides that if the matter is cured within a reasonable time, the RPI is treated as though she had been joined from the outset of the case. a. But if the matter is NOT cured within a reasonable time, the court can dismiss it. b. Fed. Rule 17.b. Capacity to Sue and be Sued: 1. This rule is broader than RPI i. RPI = determines whether one holds the legal right to bring a claim in a particular case. ii. Capacity = is aimed at whether one has the general ability to function as a litigant as all. 2. Fed. Rule 17.b.1. court assesses a human capacity to sue/be sued by looking to the law of her domicile 3. Fed. Rule 17.b.2. court assesses a business capacity to sue/be sued by looking at the law of the state where the corporation was formed. 4. Fed. Rule 17.b.3.A. court assesses a partnerships and limited liability companies (LLCs) capacity to sue/be sued by looking at the law of the state in which the federal court sits. i. This rule also allows a partnership/LLC to sue in its own name in federal court IF it asserting a Federal Question claim. Fed. Rule 18 Joinder of Claims: a. Fed. Rule 18.a. provides that a party asserting a claim (also counter/cross/3rd party claim) may join as many claims of any kinds as the party has against an opposing party.

XVI.

This rule essentially does not have any procedural requirements: i. The claims do not have to be related in any way and can be completely unrelated transactionally, legally, and in terms of the remedy sought. ii. They can be independent or alternate claims iii. They can be legal or equitable 2. Important notes on Open Season rationale: i. Allows the parties to settle all their overall disputes by allowing packaging of all claims in a single proceeding. ii. The party MAY join as many claims as she wishes= permissive rule = the party is not required to assert all her claims in a single case iii. Rule 18 applies to both and but Rule 18 will not apply to UNTIL they assert a counter/cross/3rd party claim. 3. A party can assert a joinder claim, ONLY if it invokes federal subject matter jurisdiction. i. 1367.a. - Grants supplemental jurisdiction over claims that are part of the same case or controversy as a claim that properly invoked federal subject matter jurisdiction. a. This is satisfied if the claims share a common nucleus of operative fact ii. 1367.b. Applies ONLY in cases that invoked Diversity of Citizenship b. Fed. Rule 18.b. Joinder of Contingent Claims: 1. XVII. Fed. Rule 19 Required Joinder of Parties: a. Introductory Notes: 1. Rule 20 a. is permissive so the does not have to employ it the fullest 2. Persons the leaves out = absentees 3. The NEXT question becomes: Can anyone override the s structuring of the case by forcing the joinder of absentees? i. Yes- there 3 joinder devices can restructure the s case: a. Compulsory Joinder Rule 19 b. Impleader Joinder Rule14 c. Intervention Joinder Rule 24 4. Policy reasons for allowing joinder devices to override s case structure i. Efficiency Intervention embodies 1 & 2 Compulsory ii. Avoiding harm to absentee embraces all 3 iii. Avoiding harm to the . Impleader is based on 1 &3 5. 6. Fed. Rule 19 is the MOST comprehensive provision overriding the s joinder choices. Parties & Potential parties (to civil case) fall under 1 of three categories i. Proper parties: a. person who may be joined, at the option of the because they have sufficient connection to the dispute ii. Required (necessary) parties: a. Persons who the did not join in the case, but whose presence in the case is so desirable that the court will override the s choice by requiring them to be joined if joinder is possible. iii. Indispensable parties: a. Persons whom the did not join, and who (because they are necessary) should be joined, but cannot be joined (due to i.e.:: courts lack of jurisdiction over that person) and in their absence, the court has decided that it will dismiss the pending case rather an proceed without the absentee Applying Rule 19 is ALWAYS case and fact specific and prescribes a 3-step process: i. 1.) 19.a. The court 1st assesses whether the absentee is a required-party.

P . R I 7.

ii.

iii.

2.) 19.b. If court finds that the absentee is a required-party, then the court has to decide if that party can be joined in the pending case at hand. a. Court Assessment to determine if that party should be joined: i. Whether the absentee is subject to personal jurisdiction (19.a.) 1. subject to service of process = subject matter jurisdiction ii. Whether the absentee, once joined, would have a valid objection to the venue (19.a.3.) 1. If absentee objects to the venue and his joinder would make venue importer, the court must dismiss the absentee from the case. iii. Whether the absentee can be joined without affecting Diversity of Citizenship jurisdiction; (19.a.) 1. Every claim in federal court MUST be supported by federal subject matter jurisdiction. 2. Subject matter jurisdiction limitation on federal jurisdiction are not waivable and the parties cannot avoid them stipulation 3. Fed. Rules CANNOT affect the jurisdiction of the federal courts a. So a claim asserted by or against the necessary party MUST be assessed for subject matter jurisdiction. 4. Supplemental Jurisdiction: If supplemental jurisdiction supports the claims by or against necessary parties, it will render joinder feasible because it will allow the claim to be joined in the pending case. a. 1367.a.- When an absentee has an interest in the dispute and is so closely related to it that her interest may be impaired or her nonjoinder threatens the (or if counterclaims) with multiple or inconsistent obligations, supplemental jurisdiction is granted over the claims by or against a necessary party. b. 1367.b.- Since this provision apply s only in cases that invoked Diversity of Citizenship and then removes supplemental jurisdiction when the has a claim against persons made parties under Rule 19, Supplemental jurisdiction is NOT available in Diversity of Citizenship claims where: i. Claims are asserted by the against a necessary party joined as a ; OR ii. Claims are asserted by the necessary party if she is joined as . b. If joinder is seen as feasible in light of these 3 inquires, the party will be joined under 19.a.2. i. The court may order joinder of the absentee as a or 1. If absentee joined as , will amend original complaint to have a claim against the newly joined . 2. If absentee joined as , she will file an appropriate pleading setting forth her claim. 3.) 19.b. If the absentees joinder is not feasible, the court must determine whether in equity and good conscience, if the court should: a. Determine 1 of 2 things: i. Allow the case to proceed without the absentee 1. Problem: Court risks subjecting the /absentee to the kind of harm Rule 19 intended to protect

ii. Dismiss the case 1. Problem: Court denies the her choice of forum. 2. If the court goes with this decision, the absentee = indispensible a. Case will be dismissed under Rule 12.b.7. b. 19 b. governs the courts choice between the 2 options. i. Has a list of 4 factors that court must asses. b. Fed. Rule 19.a. Persons Required to be Joined if Feasible: absentee will be required if the present party structure of the case satisfies any of the 3 following situations: 1. Fed. Rule 19.a.1 Required Party: states that the absentee must be subject to subject matter jurisdiction in order to be a required party: i. Fed. Rule 19.a.1.A. (situation #1) provides that absentee should be joined if, without her, the court cannot accord complete relief among the existing parties already in the action. a. This reflect equity principle of deciding disputes as whole rather than 1by 1 Promotes Efficiency i. Fed. Rule 19.a.1.B. requires that the absentee claim an interest relating to the subject of the suit a. To qualify, the interest must be legally protected [and] not merely a financial interest or interest of convenience. b. 19.a.1.B requires that the failure to join an absentee will harm someone: i. Fed. Rule 19.a.1.B.i. (situation #2) will harm the absentee 1. Absentee must have some interest in dispute 2. This rule deals with Practical harm to the absentee because generally, an absentee cannot suffer a legal harm if the case proceeded as originally structured. 3. Absentees cannot be legally bound by the judgment in that case ii. Fed. Rule 19.a.1.B.ii. (situation #3) will harm the 1. must have some interest in dispute 2. The absentee must be joined to prevent potential harm to an existing party in the dispute (usually the ) a. Remember that a can be a defending party/existing party if the has asserted a counterclaim against her 3. This rule is aimed at a specific kind of harm to the : a. The risk of being put to dbl, multiple or otherwise inconsistent obligations because of the absentees interest. i. NOTE: obligations multiple litigation. ii. Therefore, it is not enough that a partys suit structure threatens the to potential multiple suits. ii. Note: Difference between Rule 19.a.1.A & 19.a.1.B a. Rule 19 .a.1.B requires that the absentee claim an interest relating to the subject of the suit. b. Rule 19.a.1.A does NOT require that the absentee have any interest in the pending case but it mandates that joinder to achieve efficiency 2. Fed. Rule 19.a.2. Joinder by Court order: If the court finds that joinder of the absentee passes the 3 inquire test, it is seen as feasible and the party will be joined. i. The court may order joinder of the absentee as a or 3. Fed. Rule 19.a.3. Venue: state that if an absentee objects to the venue and his joinder would make venue importer, the court must dismiss the absentee from the case

c. Fed. Rule 19.b. When Joinder is not Feasible: Governs the courts choice between allowing case to move without absentee or dismissing the case which must be made in equity and good conscious 1. Fed. Rule 19.b.1 -4 = factors the court looks at to consider in their determination: i. Whether there would be prejudice to the outsider or any of the exiting parties by proceeding without that outsider; a. This is concerned with outsider/existing ii. Whether the prejudice can be lessened through creative fashioning of the relief and judgment , a. This asks if there is a way to reduce/lessen prejudice iii. Whether a judgment with that party not participating would be adequate a. This asks if the judgment would be adequate without the absentee iv. Whether or not, telling the to go sue elsewhere would result in her not having an adequate remedy a. This asks if that if the case is dismissed, will he have a remedy under that other place/forum? XVIII. Fed. Rule 20 Permissive Joinder of Parties: a. Fed. Rule 20.a. Persons who may Join or be Joined: 1. Introductory notes: i. Fed. Rule 20.a.- Allows the to decide how to structure her case: a. I.e.: whether to have multiple parties either on the side or the side. ii. The same 2-part test is applied to Fed. Rule 20.a.1 and Fed. Rule 20.a.2. a. Arises out of the same transaction or occurrence OR series of transactions or occurrences; and b. Raises at least one common question iii. The difficult part encountered in Fed. Rule 20.a. is the 1st part of the test a. The 2nd part is usually obvious. iv. Fed. Rule 20.a. continues the theme of packaging claims arising from and parties involved, in a transaction or occurrence a. The focus on the transaction (on the real-world grouping of facts) underlies the modern definition of claim for claim preclusions purposes. b. Also underlies several claim joinder devices seen in Rule 18. v. This concept of transactional relatedness defines the general availability of supplemental jurisdiction. vi. Important note: Fed. Rule 20.a. is regarded as a more broad rule because of the language Arise out of the same transaction or occurrence OR series of transactions or occurrence. a. As opposed to other transaction-based joinder Rules such as: i. Fed. Rule 13.a.1. Compulsory counterclaim ii. Fed. Rule 13.g. Cross claims vii. Fed. Rule 20.a. = PERMISSIVE a. The rule give the the option to take or leave the joinder opportunity and therefore the can engage in strategic choices. viii. Reasons why would NOT join all possible s and/or s: a. Court might not have personal jurisdiction b. Including all the parties will make it impossible to invoke Diversity of Citizenship ix. Reasons why would prefer/like to join all possible s and/or s: a. Its less expensive and less burdensome to sue once than to file separate cases against each potential b. Advent of nonmutual defensive issue preclusion gives the an incentive to sue several s at once:

2.

3.

4.

i. In other words, if the sued separately and lose against 1 , the in another suit may be able to use issue preclusion against the on any negative findings. c. can benefit from each of the co- s effort in the litigation to shift the blame from itself to another cod. Suing individual s allows them to whipsaw the . Occurs when. i. the in one case might convince the jury that the harm to the s is not her fault, but the fault of someone who is not a party in this case x. Reasons why the would prefer NOT to have co- s suing with them: a. Suing alone may allow the to recover from the first, before the other would get the s assets b. can conclude that her cases is more compelling than the other s and adding the other would tarnish her case and divert attention from the jury from her to the other c. Single s is more fair because she doesnt have to share the recovery i. Generally, s will use Rule 20.a.2. to join all the potential s into a single case, and keep center stage on themselves only. Issues of Subject Matter Jurisdiction: i. Once has structured her case, she must determine whether: a. the court has in personam jurisdiction b. the court is the proper venue c. the court has subject matter jurisdiction ii. Refer to the Hypos for further analysis of subject matter jurisdiction iii. Allapattah: clarifies how jurisdiction attaches in diversity cases: a. If there is complete diversity, the presence of a single claim for > than $75K, invokes Diversity of Citizenship jurisdiction. b. If there is not complete diversity between all the s and all the s, there is no diversity case at all and nothing to which supplemental jurisdiction can attach to. Fed. Rule 20.a.1. Plaintiffs: defines who may be joined as co- s i. This rule prescribes a 2-part test = 2 or more may join as co- s if their claims: a. Arise out of the same transaction or occurrence OR series of transactions or occurrences; and b. Raise at least one common question i. Common question can be either a question of fact OR question of law Fed. Rule 20.a.2. Defendants: defines who may be joined as co- s i. This rule also prescribes a 2-part test = 2 or more may join as co- s if the claims against them: a. Arise out of the same transaction or occurrence OR series of transactions or occurrences; and b. Raise at least one common question i. Common question can be either a question of fact OR question of law

XIX.

Fed. Rule 21 Misjoinder and Nonjoinder of Parties: a. Introductory Notes: 1. This rule is invoked when the structures her case in violation of Fed. Rule 20.a. b. Fed. Rule 21- provides that such misjoinder of parties is NOT a basis for dismissal of the case. 1. Instead, the court may choose to sever any claim against any party. i. Severance = 2 or more completely separate suits a. Each suit will have its own docket number. b. Each suit will result in its own judgment. ii. Separate trials = separate adjudications of a claim(s) that are part of an individual case.

2.

Important Inference from this Rule: Under severance,Fed. Rule 42 might come into play: i. I.e.: If a sues multiple s on a Rule 20.a. joinder basis but looses, the still might win because Fed. Rule 21 allows a to use Fed. Rule 42 (Consolidation; Separate Trials) a. Refer to Fed. Rule 42 below.

XX.

IMPORTANT Introductory notes for Discovery ( Fed. Rules 26, 30, 33, 34, 35, 36, 45) a. Each party has 6 tools of discovery available: 1. Depositions 2. Interrogatories 3. Requests for production Theses 5 are augmented by #6- Required disclosures. 4. Medical examinations 5. Request for admission 6. Required disclosures

XXI. Fed. Rule 26 Duty to Disclose; General Provisions Governing Discovery: a. Fed. Rule 26.a. Required Disclosures: requires each party to disclose something even though nobody asked them to. 1. Fed. Rule. 26.a.1. Initial Disclosures 2. Fed. Rule 26.a.2. - Disclosure of Expert Testimony 3. Fed. Rule 26.a.3. - Pre-trial Disclosure b. Fed. Rule 26.b. Discovery Scope and Limits c. XXII. Fed. Rule 30 Depositions by Oral Examination XXIII. Fed. Rule 33 Depositions by Written Questions (aka Interrogatories ) XXIV. Fed. Rule 34 Producing Documents (etc) XXV. Fed. Rule 35 Physical and Mental Examinations XXVI. Fed. Rule 36 Request for Admissions. XXVII.Fed. Rule 41 Dismissal of Actions: a. Introductory Notes: 1. b. Fed. Rule 41.a. Voluntary Dismissal: Occurs when the filed a case and then wants to dismiss it. Fed. Rule 41.a.1. By the : i. a. Fed. Rule 41.a.1.A.- In essence, this rule limits the ability of a to take a voluntary dismissal without a court order. Court involvement and consent are not required when either of 2 things occur: i. Fed. Rule 41.a.1.A.i. - the unilaterally files notice of dismissal before the s answer or service of a motion for summary judgment. 1. The requirement that the notice be filed makes it clear that that it cannot be an oral notice- it must be in writing. 2. This dismissal is without prejudice unless the had previously dismissed an earlier action involving the same claims. ii. Fed. Rule 41.a.1.A.ii. Parties can stipulate to dismiss the case at any time. 1. This requires that the get a signed agreement of all the parties who have appeared. 2. This dismissal is without prejudice unless stipulation expressly states that it is without prejudice. b. Fed. Rule 41.a.1.B. Effect: i. First sentence: Already mentioned above this rules makes it clear that the dismissal but either of the methods stated in Rule 41.a.1. A., are

generally without prejudice unless the had already dismissed the claim. ii. Second sentence: Where the first voluntary dismissal is without prejudice, and the re-files the case and then dismissed by filing a notice of dismissal (note: NOT by stipulation) that second dismissal operates as an adjudication on the merits. 1. Also, second sentence in this rule makes it clear that this is true regardless of whether the first case was in federal court or state court. 2. Adjudication on the merits = means dismissed with prejudice and the claim is extinguished. iii. Applied to Fed. Rule 41.a.1.A.i. Dismissal is without prejudice unless the had previously dismissed an earlier action involving the same claims. iv. Applied to Fed. Rule 41.a.1.A.ii Dismissal is without prejudice unless stipulation expressly states that it is without prejudice 2. Fed. Rule 41.a.2. By the court; Effect: i. First sentence: Provides for 2 things: a. That in any situation not covered by Rule 41.a.1, the courts involvement is required where the court may grant a s motion for voluntary dismissal. b. That the court may impose whatever terms and conditions it deems proper. ii. Second Sentence: expressly addresses dismissal of the case if a counterclaim is pending. a. A court can dismiss a case pursuant to s request only if the s counterclaim can remain pending for independent adjudication. b. If a counterclaim cannot remain in court, the court should not allow the to dismiss her claim. i. Rationale for this rule: to ensure that the s claim against the remain on the courts docket if the so desires. iii. Last Sentence: provides that the courts dismissal under this rule is presumed to be without prejudice. c. Fed. Rule 41.b. Involuntary dismissal; Effect: 1. Introductory notes: i. Rule 41.b. is not exclusive because there are other ways that the s case can be involuntarily dismissed: a. All the defenses in Rule 12.b. may result in dismissal b. A violation of Rule 11 may result in dismissal. c. A sanction for violating Rule 26 Discovery rules may result in dismissal. ii. Rule 41.b. permits dismissal of the action or any claim a. There may be circumstances in which dismissal of less than the entire case is appropriate i. I.e.: when the fails to comply with a court order concerning a particular claim iii. Even though Rule 41.b. expressly provides that a may move to dismiss for any of the enumerated reasons, the Rule permits a District Court to dismiss sua sponte without a motion by the . 2. First sentence: i. Provides that the can move for involuntary dismissal in 3 situations. a. s failure to prosecute the case i. Fed. Rule 4.m. 1. Based on the s failure to serve within 120 days 2. Dismissal is without prejudice. b. s failure to comply with the Fed. Rules

i. Fed. Rule 38: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions 1. Serious violation of discovery rules c. s failure to comply with a court order. i. Fed. Rule 38: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions 1. Serious violation of discovery rules ii. Permits dismissal of the action or any claim a. can invoke wither Rule 41 or Rule 15 to dismiss an individual claim i. Rule 41 = Dismissal of Actions ii. Rule 15 = Amendments and Supplemental Pleadings b. can invoke either Rule 41 or Rule 21 to dismiss an individual i. Rule 41 = Dismissal of Actions ii. Rule 21 = Misjoinder and Nonjoinder of Parties 3. Second sentence: addressed whether an involuntary dismissal is with prejudice (aka: operates as an adjudication on the merits) i. An involuntary dismissal IS usually adjudicated on the merits and thus ithe claim is extinguished. ii. 2 Exceptions to this Rule: a. The court may provide to the contrary in its order of the dismissal i. In other words, if the court dismissed the case without prejudice it does NOT act as an adjudication on the merits b. If the dismissal is based on lack of jurisdiction (either personal or subject matter), improper venue, or failure to join a party under Rule 19, the court can dismiss the case without prejudice where the dismissal is not considered to be on the merits. iii. Rationale for Exceptions: Since those dismissals essentially deal with the courts lack of power over the case, those dismissals do not address the merits of the case in any way and thus should not bar the from reasserting the claim. iv. General Rule = any involuntary dismissal (except one based upon jurisdiction, venue or indispensible parties) is deemed to be with prejudice. d. Fed. Rule 41.c. Dismissing a Counterclaim, Crossclaim, or 3rd party claim: e. Fed. Rule 41.d. Cost of Previously Dismissed Action: XXVIII. Fed. Rule 42 Consolidation; Separate Trials: a. Introductory Notes: 1. This rule permits a court in which 2 or more separate cases are pending to consolidate the cases for any or all purposes. i. Requirements: a. That the separate cases involve at least one common question of law or fact. b. That the cases be pending in the same federal district. 2. Consolidation simply means that those cases will be treated together for whatever purposes the court deems appropriate. i. Consolidation does NOT merge the cases a. They are still separate cases and will result in different adjudications. b. Fed. Rule 42.a.- Consolidation: 1. c. Fed. Rule 42.b. Separate Trials: d. e. f. g. h.

XXIX. Fed. Rule 55 Default; Default Judgment: a. Important starting notes: 1. Fed. Rule 55 is NOT the only provision that can result in a default judgment against a . i. I.e.: default judgment can be entered against for failing to abide by discovery provisions 2. Difference between Default v. Default judgment: i. Default = a notation made by the court clerks office on the docket sheet for the case indicating that the has failed to respond within the rime required by Rule 12 (w/in 20 days) a. Does NOT entitle the to relief. b. Is found in Fed. Rule 55.a. ii. Default Judgment =the actual judgment entered against a who has failed to plead or otherwise defend the s claim. a. In order to obtain relief, the MUST obtain a default judgment. i. In other words, if gets default judgment, gets her relief. b. A default must first be ordered, for a default judgment to be obtained. i. In other words, the entry of default is an absolute prerequisite to obtaining a default judgment. c. Is found in Fed. Rule 55.b. 3. Steps to obtain Default judgment i. files a complaint against ii. fails to timely respond under Rule 12 iii. then seeks an entry of default. iv. When this is done, can seek entry of default judgment. 4. Default is usually entered by the clerk of the court and not by the judge. i. Clerks of the court law clerks. a. Clerks of the court = employees of the court system who are required to oversee the filing of documents and maintenance of files and other administrative tasks. b. Law Clerks = recent law school graduates hired by a judge (or court itself) to provide research and drafting assistance for the judge. b. Fed. Rule 55.a. - Entering a Default - Provides that the clerk has no discretion in the matter. 1. If the shows by affidavit or otherwise that the *** has failed to plead or otherwise defend as provided by these rules, the clerk shall enter the s default. i. ***Although its generally the s failure to respond, remember that it can be any defending party as a can sue a in a counterclaim. a. In a counterclaim, the becomes a defending party and must respond to it under Rule 12. 2. However, Fed. Rule 55.a. does NOT provide for the automatic entry of default once the s time for responding has run out. i. The rule clearly requires the to actually do something (i.e.: make the request) 3. Just because the rule reads clerk, it does not mean that this rule prohibits the court (judge from doing so the court judge still has the authority to enter a default but generally there is no reason to go to anyone but the clerk of the court. 4. Time frame: i. According to Rule 12, must generally respond within 20 days after being served with process. a. The person who served process on the is required to make a report to the court indicating when service was effective. b. The clerks office records this info on the docket sheet for the case c. Even if the server failed to make the report to the court, the can present proof of when service was effected, and show the clerk that more than 20 days has lapsed.

d. Any response on behalf of the is recorded on the docket sheet for the case so the clerk can quickly determine whether the has responded appropriately under Rule 12 provisions. 5. Importance of a Default entry: i. If the entry of default is made against the , the may not recover relief. ii. HOWEVER, entry of default cuts off the s right to file a response to the complaint. 6. Default Hypo: i. What happens if the wants to serve and file his answer more than 20 days after she was served with process a. If the has already had the default entered, the is shit out of luck and pursuant to Fed. Rule 55.c, will have to make a Rule 60.b. motion to set aside the default entry. b. If the has NOT had the default entered, the is allowed (r should) move for an extension of time in which to respond under Fed. Rule 6.b. c. Fed. Rule 55.b. Entering a Default Judgment : 1. Introduction Notes: i. Judgment = is an order, issued under the authority of the court that creates a legal obligation from the to the . 2. Fed. Rule 55.b.1. - By the Clerk : i. At the request of the , the Clerk of the Court can enter a default judgment under very limited circumstances. ii. must show FOUR (4) things to be true: a. The claim MUST be for a sum certain/or an amount that can be made certain by calculation i. Sum certain = b. must provide an affidavit of the damages due i. Affidavit = sworn statement executed under penalty of perjury c. The must have failed to appear in the case. i. Default judgment from the clerk is only available if the has failed to appear at all. d. The cannot be a minor or an incompetent. iii. If these 4 things occur/are evident, the clerk has no discretion and shall enter judgment for the [amount shown in the affidavit] and costs against the . iv. s Relief: a. When clerk enters default judgment, relief = sum claimed by in the s affidavit. v. Importance of Fed. Rule 55.b.1. - The clerk enters judgment only in those cases in which there is no need for judicial discretion. 3. Fed. Rule 55.b.2. By the Court: i. If the cannot prove ALL of the 4 things above, then they MUST seek the default judgment from the judge/court. a. does so through an application for default judgment. ii. The court will [usually] hold a hearing on the application of the default judgment a. Why? Just because the for the default entry against the , doesnt mean that she automatically gets the default judgment i. does not have a right to default judgment. iii. Since the matter is in the District Court judges discretion, the judge may choose to ask for evidence on any relevant matter a. I.e.: The strength of the s claim on the merits, viability of any defense the might have, etc. iv. Factors use by Court to Determine if to Grant DJ: a. Whether the s failure to respond was willful

b. Whether the has been harmed/prejudiced c. Whether the has a meritorious defense to the underlying case. v. Notice to the : a. Fed. Rule 55.b.2. - requires that the get written notice, which should be served at LEAST 3 days before the hearing on the application, BUT ONLY IF the has appeared personally or by a representative in the case. i. Appearance = can make a motion or answer the claim. vi. s Relief: a. When the court/judge enters default judgment, the relief amount depends: i. If the has sued for a sum certain and the doesnt contest it, the court can enter judgment for that amount without further inquiry. ii. If the has sued but the amount is not readily calculable, or the contests the amount, the court will hold a hearing to determine the appropriate remedy. b. When a defaults on the judgment, he has basically conceded to his liability. i. But defaulting in the judgment conceding to the amount of damages. ii. Remember that under Fed. Rule 54.c. the default judgment can never exceed the amount of damages the demanded in the complaint, nor can it include a type of relief that she did not seek in the complaint. 1. Policy Reason: the should not be subjected to greater loss than that for which she was given notice. d. Fed. Rule 55.c.- Setting Aside a Default or a Default Judgment: 1. Important Note: i. is not entitled to have default or default judgment set aside from simply asking the court. a. The District Court judge has full discretion 2. This rule has 2 separate meanings: i. Fist sentence/meaning- provides simply that the defaulting party may move the court to set aside a default for good cause a. Motion to set Aside a Default : Has 2 requirements: i. The MUST show good cause for her failure to defend in a timely fashion. 1. Good Cause = a reasonable excuse a. It is also helpful if (it appears) that the is action in good faith, thus, the longer a waits to bring her motion to set aside a default, the less likely it will appear to the court that the was acting in good faith. ii. The has a viable defense. (not explicitly in Fed. Rule 55.c, but implied) 1. It makes no sense in setting aside a default and place the case back in litigation, if the does not have a colorable defense on the merits. 2. There is no standard for what constitutes a viable defense as this part of the rule is discretionary to the court. a. Caselaw is not reconcilable on setting aside defaults. ii. Second sentence/meaning provides that a court may set aside a default judgment under Fed. Rule 60.b. as the appropriate relief. a. Second sentence and reference to Fed. Rule 60.b is made because courts are more willing to set aside a default than a default Judgment.because: i. Default = merely an interlocutory ruling in the course of the case ii. Default Judgment = official judicial order that the is entitled to recover from the . iii. .

b. Motion to set Aside a Default Judgment: Has 2 requirements: i. Under Fed. Rule 60.b. ANY judgment, including a default judgment, can be set aside. ii. Most common default judgment situation falls under Rule 60.b.1. in which the motion to set aside is based upon mistake, inadvertence, surprise, or excusable neglect. Under this situation, has 2 requirements: 1. must show good cause = the must convince the court that she was guilty of a mistake or of excusable neglect that should be forgiven by setting aside the judgment. 2. must show a viable defense = the court will determine: a. Whether the made the required showings b. Whether the was prejudiced c. Whether the had good faith e. Fed. Rule 55.d. Judgment Against the United States provides that in order for a default judgment to be entered against the United States, its officers, or its agencies, the claimant MUST establish sufficient evidence(to the court) for a claim or right or relief.