US Civil Procedure/Pleading

Unlike many state courts, the federal courts have a simplified pleading system called notice pleading. Notice pleading requires a “short and plain statement of claim showing the pleader is entitled to relief” in the complaint. The complaint is met with the answer, which is a document that admits or denies the allegations made in the complaint, as well as making any counter-claims the defendant may have against the defendant (any counter-claim, although it is required that any counter claim arising from the same incident be litigated in the same trial).

A civil action is commenced by filing a complaint in writing before the trial court (Rule 3). The filing is made at the trial court clerk's office. A complaint is one of the allowed pleadings. The plaintiff's claim against a defendant is contained in the complaint. There are two types of pleadings: reclamatory and responsive pleadings. The complaint is a reclamatory pleading. The answer to the complaint is a responsive pleading.
A pleading must contain a short and plain statement (Rule 8(a)):

of the grounds upon which the court’s jurisdiction depends, unless it already has jurisdiction and needs no new grounds to support it
- Subject matter jurisdiction is based on:

Federal nature of the claim (claims “arising under” the Constitution, laws, or treaties of the U.S.)
Diversity of citizenship

Venue: place of trial
Personal jurisdiction: the court must have the power to render judgment against a defendant

of the claim showing that the pleader is entitled to relief
a demand for judgment for the relief the pleader seeks

UNLESS you are alleging fraud or mistake - then you must plead the specific circumstances (Rule 9(b)).

A pleading must be:

in numbered paragraphs by allegation (Rule 10(b))
signed by at least one attorney of record (Rule 11(a))
certified by the attorney that it is presented after a reasonable inquiry under the circumstances (Rule 11(b)) and
- it is not being presented for improper purpose, such as to harass, delay, or add costs (Rule 11(b)(1))
- the claims, defenses, and legal contentions are warranted by existing law or by a non-frivolous argument for the extension of the law or establishment of new law (Rule 11(b)(2))
- the allegations and factual contentions have evidentiary support – or are likely to have support after discovery (Rule 11(b)(3))

A pleading does not have to be consistent, it can contain alternative theories (Rule 8(e)(2)).

Service of the summons and complaint must be made within 120 days after filing (Rule 4(m)).

Summons and waiver of service — Rule 4

Upon or after filing complaint, the plaintiff may present a summons to the clerk for signature and seal (Rule 1(b)).

Summons shall be served together with a copy of the complaint (Rule 4(c)(1)).

OR

Plaintiff can notify defendant of the commencement of the action and request that the defendant waiver service (Rule 4(d)(2)).

The notice and request must:

be in writing and addressed directly to the defendant (Rule 4(d)(2)(A))
be dispatched through first-class mail or other reliable means (Rule 4(d)(2)(B))
be accompanied by a copy of complaint and identify the court in which it was filed (Rule 4(d)(2)(C))
inform defendant the consequences of compliance or refusal (Rule 4(d)(2)(D))
set forth the date on which the request was sent (Rule 4(d)(2)(E))
allow a reasonable time for return – 30 days from which it was sent (Rule 4(d)(2)(F))
provide an extra copy of notice and request and pre-paid means of compliance in writing (Rule 4(d)(2)(G))

If defendant refuses waiver, he must pay plaintiff costs, including reasonable attorney fees to collect costs.

Defendant must answer within 21 days after being served with complaint (Rule 12(a)(1)(A)).

If service of summons is waived – the defendant must answer within 60 days after the request for waiver was sent (Rule 12(a)(1)(B)).

Defendant pre-answer motions – Rule 12

Defendant may make these pre-answer motions:

Motion for more definite statement (Rule 12(e)) – (if granted, plaintiff must reply 10 days after notice of order)
Motion to strike redundant, immaterial, impertinent, or scandalous matter (Rule 12(f)) – (LOST AFTER DEFENDANT ANSWERS)

Also, the following defenses may, at the option of the pleader, be made by motion (Rule 12(b)):

lack of jurisdiction over the subject matter (Rule 12(b)(1))
lack of jurisdiction over the person (Rule 12(b)(2)) – (LOST AFTER DEFENDANT ANSWERS)
improper venue (Rule 12(b)(3)) – (LOST AFTER DEFENDANT ANSWERS)
insufficiency of process (Rule 12(b)(4)) – (LOST AFTER DEFENDANT ANSWERS)
insufficiency of service of process (Rule 12(b)(5)) – (LOST AFTER DEFENDANT ANSWERS)
failure to state a claim upon which relief can be granted (Rule 12(b)(6))
failure to join a party under Rule 19 (Rule 12(b)(7))

Must consolidate Rule 12 motions (Rule 12(g)) – (any motion available at the time that is left out is forever lost. EXCEPTIONS: Rule 12(b)(6): failure to state a claim upon which relief can be granted AND Rule 12(b)(1): lack of jurisdiction over the subject matter - (these can be raised at any time)).

Defendant must answer within 10 days after denial or postponement of motion (Rule 12(a)(4)(A)).

Default judgment from failure to answer – Rule 55

If defendant fails to answer, the plaintiff may bring an affidavit of this fact to the clerk of the court, who will enter the party’s default.

Plaintiff must show that:

the complaint was served properly, and
the defendant did not answer (Rule 55(a))

If claim is for a sum certain, the clerk can enter default judgment (Rule 55(b)(1)).

If claim is for uncertain amount, the party entitled to judgment by default must apply to the court for damages (Rule 55(b)(2)).

However, the court can set aside the entry of default for good cause with a motion filed within one year under Rule 60(b) - (Rule 55(c)) [Reasons: mistake, inadvertence, excusable neglect or fraud].

If the defendant has appeared in the action – s/he is entitled to a 3-day written notice of the application for default judgment (Rule 55(b)(2)).

Defendant must answer within 21 days after being served with complaint (Rule 12(a)(1)(A)). (was 20 days, prior to 2007 amendments; is also calculated as calendar days unless final day falls on a court holiday/weekend; then it's due the next court day).

If service of summons is waived – the defendant must answer within 60 days after the request for waiver was sent (Rule 12(a)(1)(B)).

Defendant must answer within 21 days after denial or postponement of motion (Rule 12(a)(4)(A)). (was 10 days, before 2007 amendments)

Answer – Rule 8

Defendant must state in short and plain terms its defenses to each claim asserted in the complaint (Rule 8(b)). - (UNLESS you are alleging fraud or mistake - then you must state the specific circumstances (Rule 9(b))).

Defendant must specifically admit, deny, or claim insufficient knowledge or information to each of the allegations upon which the plaintiff relies (Rule 8(b)).

General denials are not allowed – must specify which part is denied and which part is admitted (Rule 9(b)).

Without knowledge or information sufficient to form a belief as to the truth = denial (Rule 9(b))
Failure to deny = admittance (Rule 8(d))

Answer must set forth affirmative defenses (“true, but…”) such as: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel (issue preclusion), failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata (claim preclusion), statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense (Rule 8(c)).

An answer does not have to be consistent, it can contain alternative theories (Rule 8(e)(2)).

Post-answer plaintiff motions – Rule 12

Plaintiff may make these post-answer motions:

Motion for judgment on the pleadings = ("so what?") – (cannot include matters outside of the pleadings. If you do, then it is treated as Rule 56 summary judgment (Rule 12(c)))
Motion to strike redundant, immaterial, impertinent, or scandalous matter (Rule 12(f))

Must consolidate Rule 12 motions (Rule 12(g)) – (any motion available at the time that is left out is forever lost).

Post-answer defendant motions – Rule 12

Defendant may make these post-answer motions:

Motion for judgment on the pleadings = ("so what?") – (cannot include matters outside of the pleadings - if you do, then it is treated as Rule 56 summary judgment (Rule 12(c)))
lack of jurisdiction over the subject matter (Rule 12(b)(1))
failure to state a claim upon which relief can be granted (Rule 12(b)(6)) – (cannot look beyond the pleadings, cannot attach evidence - if you attach documents, then it will be treated as a motion for Rule 56 summary judgment)
failure to join a party under Rule 19 (Rule 12(b)(7))

Must consolidate Rule 12 motions (Rule 12(g)) – (any motion available at the time that is left out is forever lost. EXCEPTIONS: Rule 12(b)(6): failure to state a claim upon which relief can be granted AND Rule 12(b)(1): lack of jurisdiction over the subject matter - (these can be raised at any time))

Counterclaim and cross-claim – Rule 13

Compulsory Counterclaims: A pleading shall state as a counterclaim any claim which, at the time of serving the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require, for its adjudication, the presence of third parties of whom the court cannot acquire jurisdiction (Rule 13(a)).

Permissive Counterclaims: A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim (Rule 13(b)).

Counterclaim Maturing or Acquired After Pleading: A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading (Rule 13(e)).

Omitted Counterclaim: When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may, by leave of court, set up the counterclaim by amendment (Rule 13(f)).

At least 21 days before a scheduling conference is held or scheduling order is due under Rule 16(b).

Rule 26(f) Conference – Planning for disclosures and discovery

Parties must confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1), and to develop a proposed discovery plan that indicates the parties' views and proposals concerning:

what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement as to when disclosures under Rule 26(a)(1) were made or will be made;
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 upon particular issues;
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
any other orders that should be entered by the court under Rule 26(c) or under Rules 16(b) and (c)

Parties must attempt in good faith to agree on the proposed discovery plan, and submit a written report outlining the plan within 14 days after the conference.

Pre-Discovery Disclosure must be within 14 days after the Rule 26(f) conference.

Federal pre-discovery disclosure — Rule 26(a)(1)

Each party, without waiting for a discovery request, must provide to the other parties:

(A) the name, address, and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment (note, however, that you are rolling the dice that the judge will agree that it is solely for impeachment and not, instead, an affirmative defense), identifying the subjects of the information;
(B) a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;
(C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying, as under Rule 34, the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and
(D) for inspection and copying, as under Rule 34, any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Disclosure of Expert Testimony (Rule 26(a)(2)):

An expert witness is someone who is specially employed to provide testimony (Rule 26(a)(2)(B))
Must disclose the identity of expert witnesses (Rule 26(a)(2)(A))
Must include written report signed by witness.
- This report must contain:
  - a complete statement of opinions to be expressed and the basis and reasons therefore,
  - the data and other information considered by the witness in forming the opinion,
  - any exhibits to be used as a summary of or support for the opinions,
  - the qualifications of witness,
  - a list of all publications authored by the witness within the preceding ten years,
  - the compensation to be paid for the study and testimony,
  - a listing of any other cases in which the witness has testified at trial or by deposition within the preceding four years
There is work product protection for the non-testifying expert, unless there are extraordinary circumstances.

Disclosures of expert witnesses must be made at least 90 days before the trial date – or if used solely to contradict, within 30 days after the disclosure is made by the other party.

[Arizona pre-discovery disclosure must be made within 40 days after defendant’s answer (AZ Rule 26.1(b)(1)).]

Arizona pre-discovery disclosure – Rule 26.1(a)

Each party shall disclose in writing to every other party:

The factual basis of the claim or defense. In the event of multiple claims or defenses, the factual basis for each claim or defense.
The legal theory upon which each claim or defense is based including, where necessary for a reasonable understanding of the claim or defense, citations of pertinent legal or case authorities.
The names, addresses, and telephone numbers of any witnesses whom the disclosing party expects to call at trial with a fair description of the substance of each witness' expected testimony.
The names and addresses of all persons whom the party believes may have knowledge or information relevant to the events, transactions, or occurrences that gave rise to the action, and the nature of the knowledge or information each such individual is believed to possess.
The names and addresses of all persons who have given statements, whether written or recorded, signed or unsigned, and the custodian of the copies of those statements.
The name and address of each person whom the disclosing party expects to call as an expert witness at trial, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert.
A computation and the measure of damage alleged by the disclosing party and the documents or testimony on which such computation and measure are based and the names, addresses, and telephone numbers of all damage witnesses.
The existence, location, custodian, and general description of any tangible evidence or relevant documents that the disclosing party plans to use at trial and relevant insurance agreements.
A list of the documents or list of the categories of documents, known by a party to exist whether or not in the party's possession, custody or control and which that party believes may be relevant to the subject matter of the action, and those which appear reasonably calculated to lead to the discovery of admissible evidence, and the date(s) upon which those documents will be made, or have been made, available for inspection and copying. Unless good cause is stated for not doing so, a copy of each document listed shall be served with the disclosure. If production is not made, the name and address of the custodian of the document shall be indicated. A party who produces documents for inspection shall produce them as they are kept in the usual course of business.

If feasible, counsel shall meet to exchange disclosures; otherwise, the disclosures shall be served as provided by Rule 5 - (AZ Rule 26.1(b)(1))

The duty shall be a continuing duty, and each party shall make additional or amended disclosures whenever new or different information is discovered or revealed. Such additional or amended disclosures shall be made seasonably, but in no event more than thirty (30) days after the information is revealed to or discovered by the disclosing party (AZ Rule 26.1 B)

When information is withheld from disclosure or discovery on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced or disclosed that is sufficient to enable other parties to contest the claim. (AZ Rule 26.1 F)

Each party must serve the other a copy of all medical records relevant to the condition, which is the subject matter of the action. (Rule 26.2 A)

Parties may not seek discovery until Rule 26 (f) conference. (Rule 26 D)

Discovery — Rules 26, 30, 33, 35, 36, 37, and 45

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party (in pleadings). Relevant information need not be admissible at trial (Rule 26(b)).

Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property under Rules 34 or 45(a)(1)(C), for inspection and other purposes; physical and mental examinations; and requests for admission (Rule 26(a)(5)).

Oral depositions – Rule 30:

Limited to 10 depositions unless given permission by the court – (permission will usually be given) (Rule 30(a)(2)(A))
You can only depose a person once unless the court gives you permission (Rule 30(a)(2)(B))
Each deposition is limited to one day of seven hours (Rule 30(d)(2))
Objections in a deposition must be stated concisely and in a non-argumentive manner (Rule 30(d)(1))
Attorneys cannot instruct a deponent not to answer – unless it is privileged (Rule 30(d))
During deposition, you can make a motion to stop deposition for bad faith (Rule 30(d)(4))
Companies must designate one or more employees to testify on the matters on which examination is requested (Rule 30(b)(6))
The party who requests the deposition pays for the court reporter (Rule 30(b)(2))

Written interrogatories – Rule 33:

Interrogatories are only to parties (however, in theory, you could add someone to the complaint to compel them to answer interrogatories) (Rule 33(a))
You are limited to 25 interrogatories (Rule 33(a))
Answer to interrogatory can be to specify records from which the answer may be derived (Rule 33(d))
Answers must be given within 30 days after the service of the interrogatories (Rule 33(b)(3))

Production of documents and things and permission to enter upon land or other property – Rule 34:

If it is requested, then you must produce it (if it is relevant and not privileged) (Rule 34(a))
Must use Rule 45 Subpoena for persons not a party to the action (Rule 34(c))
Documents must be produced as they are kept in the usual course of business and must be organized and labeled (Rule 34(b))

Physical and mental exams of persons – Rule 35:

The court may order a physical and/or mental examination of a person for good cause when the physical or mental condition is in controversy (Rule 35(a))
The court cannot order a non-party to submit to physical or mental exams (Rule 35(a))
If requested, the other party gets a copy of the report of the examination; however, if you request this, then you must give up any documents you have relating to the patient’s condition. (Rule 35(b)(1))
The Rule above (Rule 35(b)(1)) also applies to examinations made by agreement between the parties and not by motion of the court – unless the agreement between the parties expressly provides otherwise (Rule 35(b)(3))

Discovery Continued) – Rules 26, 30, 33, 35, 36, 37, and 45

Requests for admission – Rule 36:

Only for parties to the action (Rule 36(a))
Once admitted, the issue is no longer in dispute (Rule 36(b))
Failure to respond is the same as admission (Rule 36(a))
Admissions can only be used for the pending action and may not be used for any other proceeding (Rule 36(b))
Admissions must be made within 30 days (Rule 36(a))

Failure to make or cooperate in discovery – Rule 37:

A party may make motion to compel discovery and for sanction (Rule 37(a)(2))
Motion must include certification that movant has in good faith conferred or attempted to confer with opposing party (Rule 37(a)(2))
An incomplete disclosure or answer is the same as a failure to respond (Rule 37(a)(3))
If the motion is granted, court shall require that non-disclosing party pay for reasonable expenses - unless the non-disclosure was substantially justified (Rule 37(a)(4))
Sanctions are limited under Rule 37 to attorney fees and costs; however, if the opposing party has not responded at all to discovery, then the court may order additional sanctions (Rule 37(c))

Defenses to Discovery requests (Rule 26(c)):

Discovery that is only for annoyance, embarrassment, oppression (Rule 26(c))
Discovery that causes undue burden or expense (Rule 26(c))
Privileged information – must file motion for protective order (Rule 26(c)):
- Physician-patient information
- Attorney work product (Rule 26(b)(3)):
  - Documents or tangible things prepared by other party’s attorney, consultant, agent, or insurer in anticipation of litigation
  - Test to see if it is attorney work product = First, "is it relevant?" If yes…
    - Is it prepared in anticipation of litigation?
    - Was it prepared by or on behalf of attorney?
      - If yes, it is the attorney’s work product and is protected.
        Even so, the other side may get it discovered if the other party shows it has substantial need of the material; and is unable, without undue hardship, to obtain equivalent information - UNLESS, it contains the mental impressions, conclusions, or opinions of the attorney = then it is still protected.
        Attorney-client privilege does not extend to underlying facts of issue, just the communication.
        
        In all cases, must file motion for protective order to prevent discovery (Rule 26(c))

Subpoena of non-party – Rule 45

Must get a subpoena to force non-parties to: (1) give testimony, (2) request documents, and (3) permit inspection of premises (Rule 45(a)).

Subpoenaed person may make motion with court to quash or modify subpoena (Rule 45(c)(3)).

Failure by a person to obey subpoena may be deemed a contempt of court (Rule 45(e)).

Plaintiff: May make motion after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by defendant.

Defendant: May make motion at any time.

Summary judgment – Rule 56

A party may move for summary judgment with or without supporting affidavits (Rule 56(a)).

The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits (Rule 56(c)).

The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits (Rule 56(e)).

Supporting and opposing affidavits shall be made on personal knowledge (Rule 56(e)).

Affidavits must set forth specific facts (who, what, when, where) showing that there is a genuine issue for trial. One needs more than mere conclusion (Rule 56(e)).

When affidavits are unavailable, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained, depositions to be taken, or discovery to be had or may make such other order as may be just (Rule 56(f)).

If it is made in bad faith or solely for the purpose of delay, the court shall order the offending party to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged as guilty of contempt (Rule 56(g)).

If the adverse party does not so respond, then summary judgment, if appropriate, shall be entered against the adverse party (Rule 56(e)).

A factual issue defeats summary judgment. (It does not matter if you have 50 witnesses to 1). Summary judgment does not weigh the evidence. The question is: "Is there a genuine issue of material fact?"

Voluntary dismissal by plaintiff – Rule 41(a)

An action may be dismissed by the plaintiff without order of court by (Rule 41(a)(1)):

filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment
by filing a stipulation of dismissal signed by all parties who have appeared in the action

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed an action based on the same claim (Rule 41(a)(1)).

If dismissal is WITHOUT prejudice, the complaint CAN be refiled.

Involuntary dismissal by motion of defendant – Rule 41(b)

A defendant may move for dismissal of an action for failure of the plaintiff to prosecute (Rule 41(b)).

An involuntary dismissal, other than a dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19, operates as an adjudication upon the merits (so the dismissal is with prejudice).

If dismissal is WITH prejudice, the complaint CANNOT be refiled.

Default judgment – Rule 55

Plaintiff may ask for default judgment when the defendant fails to plead or otherwise defend. Plaintiff must make this fact by affidavit to the clerk of the court.

Affidavit must show that:

the complaint was served properly, and
the defendant did not answer (Rule 55(a))

Upon receipt of a valid affidavit, the clerk shall enter the party's default.

If the claim is for a sum certain, and the defendant has been defaulted for failure to appear, then the clerk shall enter default judgment (Rule 55(b)(1)).

If claim is for an uncertain amount, or if the defendant has appeared before the court, then the party entitled to judgment by default must apply to the court for damages (Rule 55(b)(2)).

If the party has appeared in the action, then they must be served with written notice of the application for judgment at least 3 days prior to the hearing on such application (Rule 55(b)(2)).

The court can set aside the entry of default for good cause (Rule 55(c)).

The court can set aside the entry of default or default judgment for good cause, in accordance with Rule 60(b) (Rule 55(c)).

Default can come into effect if the answer is stricken under Rule 37 – (as if the defendant had never appeared).

Timeline

Client: Rule 11

Complaint: Rule 8 and 9 – 12

Service of Complaint: within 120 days of Complaint filed

Answer: 21 days or 60 days after Complaint

Rule 26(f) Planning for Disclosure and Discovery: 21 days before Rule 16(b) – (within 69 days after Answer)

Discovery: after Rule 26(f) Conference

Disclosure: 14 days after Rule 26(f) – (within 76 days after Answer)

Rule 16(b) Pre-trial Scheduling Conference: 90 days after Answer (or Defendant’s first appearance) and within 120 days after the Complaint has been served on a Defendant.

Expert Witness Disclosure: at least 90 days before trial date (Rule 26(a)(2)(C))

Witness Disclosure: (Rule 26(a)(3)(C)) at least 30 days before trial

Trial