Civil Procedures Outline

1) Pleadings
a) Rule 7: The kinds of pleadings between parties and motions asking the court to do something.
i) “Reply” (Rule 7(a)): The plaintiff’s response to defendant’s answer and affirmative
defenses, and P’s denial are usually assumed by the court in that P denies
everything that the defense raises in their answer.
b) Rule 8
i) 8(a) “Complaint”: Plaintiff is required to include in a complaint are: (1) statement of the
grounds of SMJ, (2) short, plain statement of the claim, AND (3) the demand for the relief
sought.
(1) Iqbal Case: References 8(a)(2), raising the standard for the short plain statement of the
claim from just being a possible claim to creating a claim that must exceed the threshold
and rise to the standard of plausibility.
(2) Rule 8(a) Explanation:  Unless the court already has jurisdiction and the claim needs no
new jurisdictional support, a short and plain statement must be included.  The claim
“must be plausible based on the facts.” The plaintiff has the burden of proof, where the
plaintiff must prove each element, at trial using admissible evidence.
ii) 8(b) “Answer”: D can either admit, deny or say they lack knowledge or information.
(1) Admission: D agrees, binding sanctions if in bad faith
(a) If it is true, the defendant must admit it
(2) Denial: Defendant rejects claim
(a) Opportunity to say what facts in the complaint was not true
(i) Improper denial will make the court turn into an admission
(ii) One can also general deny all allegations made
(3) Lack of Knowledge/Information: The D simply doesn’t know or needs more
information regarding the claim
iii) 8(d) “Alternative/ Inconsistent Claim: The P can present additional
alternative/inconsistent facts, and generally are included in separate statements.
c) Rule 12
i) 12(a) “Time”: D answer/replies to complaint within 21 days of services and if the D is a
U.S. Citizen D can answer within 60 days after waiving the 12(b) defenses, and if an
international alien, then 90 days after waiving the 12(b) defenses.
(1) 12(a)(4) “Effect of Motion”: regardless of accepting or denying or postponing, it must
be made within 14 days.
ii) 12 (b) “Defenses”: Every defense MUST be asserted in a responsive pleading but MAY
assert the following by motion PRIOR to responsive pleading:
(1) Lack of SMJ
(2) Lack of PJ
(3) Improper Venue
(4) Insufficient Process
(5) Insufficient Service of Process
(6) Failure to state a claim upon which relief can be granted
(7) Failure to join a party under Rule 19
(8) Rules 12(b)(2)-(5) are waivable, meaning if you don’t use it, you lose the opportunity
to bring up later. They must be raised in the pre-answer motion.
(9) Rule 12(b)(6): Can be raised as a Motion to Dismiss, answering ‘So what?’, plaintiff fails
to make a claim.
(10) Best to use all within the first response to the defenses, or else you are subject to
a waiver trap. The judge can dismiss any of the 2-5 if they don’t meet the
requirements.
 (11) Rule 12 (b) (6): Defenses people could have in response to the claims ( after
complaint has been filed). The “answer” is your official answer, response to the
complaint filed versus the being served a letter in the mail.
(a) 12 (b) 2,3,4, and 5 must be put in your first Rule 12 response
(b) - 12 (b) 6 and 7 can be raised for the first time any time through the trial
(c) - 12 (b) 1 is never waived, can raise at any anytime
iii) 12(c) “Motion for judgement on the pleadings”: Filed after the answer
(1) Judge considers all the facts given in each pleading made by both parties and renders a
judgement
iv) 12(e) “Motion for More Definite Statement”: If a party’s pleading include vague and
ambiguous claims, the court will grant the party to re-submit more definite pleading.
The court can order a more definite statement and the party fails to respond in 14 days,
that’s when the court can strike the pleading. - “Not making sense or lacking sufficient
preparation, vague or ambiguous”
v) 12(f) “Motion to Strike”: The court can strike a pleading based on insufficient defense or
having redundant, immaterial or scandalous matters. The court can do it on their own or
having the opposing counsel can raise it through a motion.
vi) 12(g) “Joining Motions”: The duty to join all motions together, unless the excuse is that
the defense was not available to be raised as a motion during the earlier filings.
vii) 12(h) “Waiving and Preserving Certain Defenses”: A party can waive to raise
defenses under 12(b)(2)-(5) by omitting it from a motion, failing to make it motion or can be
included in the response.
viii) 12(i) “Hearing Before Trial”: If a party makes a defense under 12(b)(1)-(7), the court
must hear and decide before trial unless court orders a deferral.
d) Rule 15
i) 15(a) “Amending Before Trial”:Pursuant to Rule 12 (h) (1), this rule shows leniency in
that it allows the Defendant to raise a motion that was failed to be raised during the pre-
answer motion (PAM) 21 days after service of motion or answer has been filed. However,
under Rule 15(a)(2), this can only take place with the consent of the other party. Basically, if
a party failed to raise a motion then rule 15 saves the defendant.
ii) 15(c)(1) “When Amendment Relates Back”: You have to be notified that someone is
suing you within the statute of limitation. If the SOL has passed, then the complaint cannot be
amended, you must have received notice of amended complaint and if notice was filed after
the SOL, then it can’t be included into the complaint. If the notice of amending the
complaint was within the SOL, then they may bring the amended complaint into the
claim.
iii) Rule 15(d) “Supplemental Pleadings”: The court can allow a party to serve a
supplemental pleading regarding any event that happened after the date of pleading to be
supplemented, even if the original pleading was defective in stating a claim or defense. The
court may order opposing counsel to respond to the supplemented pleading within a specified
time.
2) Joinder of Claim: Exam Rule - A plaintiff or defendant can bring in an additional party as a plaintiff
or defendant, if that party’s claim or the claim against the party arises out of the same
transaction or occurrences. the claims must share a common question of fact or law and
supplemental jurisdiction can satisfy subject matter jurisdiction.
a) Rule 13 “Counterclaims and Cross-Claims”
i) Rule 13(a) “Compulsory Counterclaims” [Yes, Section 1367] : *use it or lose it
(waivable)* A pleading shall state as a counterclaim if it arises out of the same common
nucleus of operative facts (CNOF), or transaction or occurrence (or service of
transaction/occurrences) that is the subject matter of the opposing party’s claim.
Compulsory 13 (a) counter-claims must be CNOF between the original and
 counterclaim, and must have SMJ through the supplemental jurisdiction 1367. This is
waived if not filed with the answer, therefore a counter claim must be filed at the time of
service.
ii) 13(b) “Permissive CounterClaims” [No, Section 1367-Look at SMJ/PJ]: Any claim
that does not arise out from the same transaction or occurrence with original claim, and can
be filed NOW or LATER, thereby the claims are not waived. Claims can be combined with
actions or completely filled separately.
iii) 13 (c): “Cross Claims [Yes, Section 1367]:
iv) 13 (g): “Cross-claim against a Co-party”: A pleading may state as a cross claim by one
party against a co-party arising out the same transaction/occurrence that is the subject
matter either of the original action or of a counterclaim therein. It must have CNOF,
always SMJ through supplemental jurisdiction. Cross-claims against a coparty is not required
but it is allowed. *
(1) **ON EXAM MUST DEFINE WHAT TRANSACTION OR OCCURRENCE IS***
Occurrence is the accident itself such as motorcycle or car accident, whereas the
question of law is the D’s liability that holds D’s actions accountable in, for
example, a Negligence claim where D uncontrollable swerving lanes
caused the car accident.
v) 13 (h) “Joining Additional Parties”: Rules 19 and 20 govern the addition of a person as
a party to a counterclaim or crossclaim
vi) 13 (i) “Separate Trials: Separate Judgments.”: If the court orders separate trials under
Rule 42 (b), it may enter judgment on a counterclaim or crossclaim under rule 54 (b) when it
has jurisdiction to do so, even if the opposing party’s claims have been dismissed or
otherwise resolved.
b) Rule 14 “Impleader”:
i) Without permission from court: must reply within 14 days of answer
ii) With permission from the court after 14 days passed: must show factor test, weighed after
requesting information from the court such as
(1) is the delay intentional, out of bad faith, or
(2) will it change or unduly delay trial, or
(3) prejudice to D or third-party D.
(4) Does the claim have merit?
iii) 14 (a)(1): Serve a non-party who is or maybe liable to all or part of the claim, where it allows
any D to drag another D under certain circumstances. Must be raised under the rules If the
third-party plaintiff files a complaint after 14 days of serving its original answer, must raise a
motion to obtain court's leave (allow/permit/grant).
iv) 14 (a)(2): Third-Party Defendant’s Claims and Defenses”: The person being served
with the third party complaint must assert against any defense and counterclaims, or
crossclaim, but may assert against another third-party plaintiff or plaintiffs claim arising out
of the same transaction or occurrence that is the subject matter of P’s claim.
v) 14 (a)(3) Plaintiffs Complaint Against a Third-Party Defendant”: The P may assert against
the Third-party defendant any claim arising out of the same transaction or
occurrence that is subject matter of the p’s claim, but must be asserted under proper
rules Rule 13 (a), (b), or (g)
vi) 14 (a)(4) “Motion to Strike, Sever, or Try Separately.
vii) 14 (a)(5) “Third-Party Defendant’s Claim Against a NonParty. Under this rule, a third-
party defendant may proceed against a nonparty who is or may be liable to the third-party
defendant for all or part of any claim against it.
c) Rule 18 “Joinder of Claims”:
i) 18 (a): P can add multiple claims but must have SMJ over each of P’s claims. Although
CNOF is not required, supplemental jurisdic tion joins the claims and applicable for
 both P and D. Also, the D can add as many counterclaims as s/he wants. HOwever,
there are potential problems arising from the joinder of claims. It may confuse the jury
towards deciding, rendering a verdict on the case, may delay the case and be inefficient. If the
claims are different there could be some prejudice that carries over to the next issue.
d) Rule 20:
i) 20 (a) (1): P’s can sue together if they assert claims arising from the same
occurrences or transactions. Claims involve a common question of law or fact.
ii) 20 (a)(2): P’s can sue multiple D’s in single action if it arose from the same
occurrence or transaction and involves a common question of law or fact. It makes
sense when a number of claims involve a single transaction or occurrences and the same
issue(s) will be litigated to resolve each claim, it is more efficient to litigate those issue in a
combined action rather than repeatedly in separate suits. resolving those issues in a single
action avoids the possibility of inconsistent judgments on the same issues.
iii) Does joinder rule permit joinder in given situation?
(1) If fed court has independent SMJ over claim or party being joined, then add it.
(2) If not refer to Summary judgment.
(3) If original SMJ based on FQ and claim/party arises from CNOF, then add it.
iv) Based on Diversity?
(1) Claims by P’s against parties joined by 14, 19, 20 24, not allowed unless diversity
required is met. P’s may be joined under SJ under rule 20 or 23 if diverse, but AIC not
met.
(2) 1391, 1404, 1406, 1441, 1446, 1447, ERi, Choice of Law

e) Rule 21 “Misjoinder and Nonjoinder of Parties”

f) Rule 42 “ Consolidation”
i) consolidate trials when common question of law or fact pending before the same court
ii) sever trials, issues, and claims
g) Rule 54 (b) Rule 54 (b) When an action presents more than one claim for relief—whether
as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties
are involved, the court may direct entry of a final judgment as to one or more, but fewer
than all, claims or parties only if the court expressly determines that there is no just reason
for delay.
h) o Most of the claim must be resolved prior to the final judgment
3) Class Joinder
a) Rule 23:
i) Rule 23 (a) – (e); (g): There are four requirements (prerequisites) for a class action
lawsuit. The class action must include numerosity (class actions preferred 40 members
or more), commonality (at least a common nucleus of facts [CNOF] or question of law),
typicality (the parties of suit must be relevant to the class action), and adequacy of
representation (biggest factor to meet because the it must fairly and adequately protects
the interest of the represented party(s).
4) Supplemental Jurisdiction:
a) 1332
i) 1332 (d) (1): “Class”- All members in class action; “Class Action”- any civil action filed
pursuant to rule 23 authorizing an action to be brought by 1 or more representative persons
“Class certification order”- order issued by a court approving the treatment of some or
all aspects of civil action as a class action; and “Class members”- person who fall within
the certified class in a class action.
ii) 1332 (d) (2): District courts have jurisdiction over civil actions in which MIC exceed
$5,000,000, exclusive of interest and cost.
 iii) 1332 (d) (6): IN any class action, claims shall be aggregated to determine whether matter in
controversy (MIC) exceeds the sum or value of $5,000,000, exclusive of interest and cost.
iv) 1332 (d) (10): In a class action, a unincorporated association shall be deemed a citizen of the
state where it has it si principal place of business and the state under whose laws it is
organized.
b) 1367: Only use this if you want to add more claims into the dispute
i) (a): CNOF
ii) (b): Pure diversity exceptions where the joinder rules of 14, 19, 20, and 24 limit
supplemental jurisdiction on the Plaintiffs side.
iii) (c ): There are four exceptions where supplemental jurisdiction will never work such as
raising a new claim, state claim more important than a federal claim, all original federal
claims dismissed, special circumstance arise. If any of these circumstances are in the fact
pattern, supplemental jurisdiction will not work.
iv) “Simplified”: grants supplemental jurisdiction for claims and parties arising out of the
same case or controversy as the anchors. It limits supplemental jurisdiction by requiring
complete diversity when P’s in pure diversity cases add through Rule 14, 19, 20, or 24
c) 1453 (b) “In General”: A class action may be removed to a district court of the US, without any
regards to where the defendant’s a citizen of the state where the action arose, but only that
it be removed by one of the rest of the defendants in that case, without their consent.
5) Required Party Joinder and Intervention:
a) Rule 19(a): Necessary Parties- parties that should be party of the lawsuit but are not
essential
i) A party is feasible if
(1) does not cause any issues with PJ or SMJ; OR
(2) answer “yes” to any of these questions:
(a) Denies complete relief
(b) hurt absent party’s interest
(c) will they hurt existing party’s interest if they are joined? The party must be added in
avoiding any issues whereas if they were not to be joined issues are present.
ii) ONLY needs to meet one of these three, saying “yes”, question to add the necessary
party to the case. If feasible then party is necessary, but if not feasible then
indispensible analysis applies, Rule 19 (b).
(1) EX: Person A own 100 shares in corporation X and person B claims they own the 100
shares. Person B sues the corporation X, only. Is Person A a necessary party? - YES
b) Rule 19 (b) Indispensable Test: (**Use this only if the issue arose with PJ or SMJ**) When an
absent necessary parry cannot be joined by a feasibility issue, 4 factors to balance.
(1) Extent of prejudice to absent/existing parties
(2) possibility of minimizing prejudice
(3) whether judgment rendered in parties obscene is adequate; verdict offended or outrageous
indecent
(4) whether there is alternative remedy (alternative would be to file in a state court)
ii) 3 Steps for Rule 19:
(1) Is absentee a Required party?
(a) Can a court give relief or will it impair or impede or inconsistent obligations? or that
claims and interest to the subject of that action, may implead or impair interest or
leave another party subject to inconsistent obligation because of the interest?
(2) Is Joinder Feasible?
(3) Dismiss or Continue?
(a) Proceed without absentee or dismiss the case
(b) Indispensable Party - cannot proceed without
 (i) Party is so integrated in the lawsuit it would be logically incorrect to continue
with the matter
iii) only raised after not feasible under rule 19 (a).
iv) 19 (c)
c) Rule 24 “Intervention” [**SMJ still applies**]
i) 24 (in general): congress says that the party can intervene by right. It must be granted by the
court as long you persuade the court it meets those elements. It is an alternative device to see
that the other non-party is not affected.
ii) 24 (a) “Intervenors As a Matter of Right”: A proposed intervenors must establish four
elements in order to be entitled to intervene as a matter of right.
(1) that the motion to intervene was timely, Timely application
(2) that they have a substantial legal interest in the subject matter of the case; Intervenor
must have issue with claim
(3) that their ability to protect that interest may be impaired in the absence of intervention;
Resolution of current action could impair/impede interest and
(4) that the parties already before the court may not adequately represent their interest;
Intervenor’s interest must not already be adequately represented by existing
parties.
iii) 24 (b): Permissive: [Conditional Intervention]
(1) party shows interest
(2) files timely motion
(3) court has high discretion to allow or deny the intervenor.
6) Erie Doctrine:
a) Substantive
b) Procedural
7) Care and Candor in Pleadings
a) Rule 11: Signing Pleadings, Motions, Sanctions
i) What are you claiming to the court must be in good faith, reasonable under the
circumstances (no frivolous –not serious-claims), prefiling inquiry required whi
also depends on the lawyers expertise
(1) two key requirements: a legal and
(2) a factual basis: where factual intentions hold evidentiary support
ii) 11 (b) (2): If they can show the claim and the defenses is baseless under existing law,
then you can sanction the claim. Legal claim is frivolous and failed to ID any factual
support or even after given the opportunity under discovery to obtain more factual
support, still lacked the factual contentions needed, it was made in bad faith and argued
it is bogus. IF existing law does not support it, you can modify or extend it.
iii) 11 (b) (3): the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery.
iv) 11 (3-4) you honestly made a reasonable good faith discovery and do believe a likelihood
to find evidence if given a reasonable time for investigation or discovery.
v) 11 (c ) Sanctions: (if lacking any adequate legal and factual grounds sanction issued)
vi) 11 (1) In general: occurred after the hearing, court may impose sanction
vii) 11 (2) Safe Harbor: motion for sanctions must be served on the party allegedly violating
the rule, court only contacted after the party has been served. The alleged party has time to
respond after the complaint within 21 days- as long you clean up the 11 motions, that time is
leeway to correct and to insure the purpose of avoiding frivolous motion. If the party doesn’t
bother, but the court thinks it is frivolous, court can sanction.
8) Intro to Discovery
a) Rule 26: trying to get info from other parties (pre-trial) (civil only)
 i) Rule 26 (b) (1) “Scope of Discovery”:party can use discovery rules to obtain information
admissible relative to subject matter involved in action or pending action
(1) can discover material relevant to a claim/defense and proportional to needs of case
(2) not proportional if benefit is outweighed by burden of producing it - Privileged matters
not discoverable, even if relevant
(3) Look for attorney-client privilege
ii) Rule 26 (b) (1) Targets only information which is privilege.
(1) Authorizes discovery for “any non-privilege”
(2) Matter (information) relevant to any party’s claims or defense “appears reasonably
calculated to lead to the discovery of admissible evidence
iii) Rule 26 (b) (2): show good cause, non-privileged matter, relevant to and proportional to
needs of case, outweighs the benefits versus likely burden.
iv) Rule 26 (b) (3): See Hickman v. Taylor. Discoverable matter:
(1) Information that is not privileged (admissible)
(2) Not privileged: objectionable information not deemed admissible in court as
evidence
v) 26 (b) (5) If a party refuses to or wished to resist discovery by invoking a privilege, Rule 26
(b)) (5) requires that the party make a claim expressly and describe the nature of the
documents, communicated or produced or disclosed, do so without revealing privileged
protected info.
vi) Rule 26 (c) Enforcement of Discovery Rules: 3 way court becomes involved
(1) responding party asks for protective order - asking court to protect because discovery
request subjects you to burden.
(2) responding party responds incomplete - interrogatories / depositions - can motion to
compel
(3) responding party fails to attend deposition
vii) - After motioner files sanctions, other side on notice for 21 days to remedy it
viii) - If they don’t remedy, it’s filed and they go to court- Judge can impose sanctions
9) Basic Tools for Discovery
a) Rule 26 (a) (1) 4 required disclosures
i) 1. Info on people likely to have discoverable info
ii) 2. Copies/description of things you may use in case (docs., ESI, tangible)
iii) 3. Computation damages, must support what you state
iv) 4. Insurance of D
b) Rule 26 (f) Initial disclosures:
i) must produce the required disclosures ready to go prior to meeting. After the meeting
then you can use the discovery tools.
ii) Party’s need to put together a detailed discovery plan to produce for court no
more than 14 days (disclose everything first hand before getting into the
detailed portion)
c) Rule 30: Depositions: Parties and non-parties
i) Live testimony, recorded, good tool to use,
ii) Questions proposed by the lawyer, 7 hours of question is the limit,
d) Rule 33: Interrogatories: written questions answered in writing under oath have 30 days to
answer these. [only parties]
e) - Physical portion of depo
f) - Used to ID ppl that you will later depose.
g) Rule 34: Document Request: written request for access to things (docs., ESI, etc. ) to
inspect, [Parties and non-parties]
i) Requested from both non-parties and a party
ii) Make sure you make note of it, write it down, and request to have access to it during
 h) Rule 35: Physical/mental exam: always need court order first and show medical condition is
in controversy also must show good cause for exam. [only parties]
i) Need to go to court for examination,
i) Rule 36: Admissions: ask to admit/deny discoverable matter if you don’t deny 30 days, you
have admitted. [only parties]
i) Want to bring in a document and you admit or deny the document if it could compromise you
in some way.
ii) If you don’t deny by 30 days then you have admitted.
iii) Can’ t bring in outside party
j) Rule 45
i) 45 (a)
ii) 45 (e)
iii) 45 (g):
10) Controlling Abuse of Discovery
a) Rule 26 (g)
b) Rule 37: Discovery Motions and Sanctions must answer all the questions and If you fail to
comply with depo, then you get sanctioned.
i) If been ordered to answer the interrogators, and failed to do so, then court compels you
to answer and sanctions you
c)
11) Pretrial Case Management
a) U.S. Consti. Amdt. VII;
b) 28 U. S. C. Section 1870;
c) Rule 16
d) Rule 38: Under the 7the amendment or other amendments, a person has a right to a jury trial but
unless they stated that they want a jury trial, they lose the right to a jury trial. Basically, you must
assert your right, request a jury trial or lose the chance it was not stated.
e) Rule 39
f) Rule 41 (3) reasons:
i) do it within safe harbor
ii) court permission or court order
g) 41 (a), a party is authorized to dismiss a complaint voluntarily, w/o prejudice to sue on the
same claim but another time and another court.
h) Rule 41 (a) (1) (B): claim dismissed w/o prejudice able to be sued again
i) Rule 41: Federal courts allow the P to voluntarily dismiss action w/o prejudice prior
(anytime b/4 D has filed answer or motion for summary judgment or upon stipulation of the
parties.
i) See In Re Bath & Kitchen Fixtures Antitrust Litigation (2008)
j) Rule 47(c ): excusing a juror- a juror may be excused by the court during trial or
deliberations for good cause.
k) Rule 48
i) Rule 48 (a): Number of jurors may be max 6 and no less than 12 members and each
must participate in rendering a verdict unless excused under 47 (c )
ii) Rule 48 (b): Verdict: Minimum of 6 members must participate in the verdict
unanimously
l) Rule 54 (c )
m) Rule 55 “ Default Judgment”:
i) P failed to prosecute or fails to move forward, it would classic basis for involuntary
dismissal 41 (b)
 ii) Or D failing to prosecute or fails to move forward, it would be a classic basis for
dismissal Under rule 55, assuming that the D has no defense and the P deserves to win.
Not a resolution of the merits
iii) Rule 55 (b) Court can enter into default or decline.
iv) Default is when failure to respond, default judgment is a consequence,
v) Rule 55 (b) (1): P Files a complaint and serves D with a summons and a copy of the
complaint under Rule 4. D fails to respond, so P moves for Default Judgment (DJ). If DJ
is granted, then the allegation regarding the amount and the character of the damages
are determined by court. This is only if the case if the sum is not certain. If the sum is
certain, then no need to go to court to figure out the costs and what is owed (how much
relief granted on damages).
vi) Rule 55 (b) (1) Default judgment: certain sum; no need to figure out what is owed since
it is fixed, certain, set number. if no 55 (b) (1), then the clerk can sign off on the default
unless a certain sum is not defined. Then the court must consider how much damages
are to be owed.
vii) Rule 55 (b) (2) court may conduct hearing if it thinks one is necessary to ascertain the
amount in damages. Court holds evidentiary hearing (court calculates the price/value)
deciding if there are other left-over issues, court calculates how much relief will they
get.
viii) Rule 55 (c ) it makes it easy for the courts to refuse entry of default for “good
cause”.
12) Summary Judgment
a) Rule 12 (d)
b) Rule 50 (a) of the Federal Rules of Civil Procedure (FRCP) a party may move for JMOL at
any time so long as the case has not yet been submitted to the jury, and make a renewed
motion within ten days of the verdict.]
c) Rule 50 (b), a motion can be made again if motion raised prior “renewed”
d) Rule 50: Judgment as a matter of Law (JMOL) in a Jury Trial; Related Motion for a New
Trial.
Motion for Summary Judgment: requires stipulation for facts, P can’t withdraw a claim
after summary judgement has been made and suffer dismissal without prejudice
e) Rule 56
i) 56 (a) offer’s AOE (affidavit) for proving genuine dispute of material fats,
requiring trial, if failed to prove then the motion for summary judgment is
granted.
ii) 56 (b) Can file motion for summary judgment anytime until 30 days after the close of
discovery.
iii) Under Rule 56 (f), (f) (3): Court can step in and grant summary judgment. Both
motions are about same issue, whether jury has legal basis, what is legally sufficient
would provide basis for party who asked motion. Rule authorizes summary judgment
only if record shows there is no genuine dispute.
iv) If discovery has ended, for motion for summary judgment to be raised must be within
30 days after discovery. If not raised within 30 days, then the court will set a precise
date for the motion for summary judgment (MFS).

13) Motions for New Trial

a) Rule 51 (c) – (d): permits party to raise error in jury’s instruction only if the objection made
was by a rule [of law].
b) RUle 50 (e)
c) Rule 52 (b)
 d) Rule 59 - allows a district court to order a new trial if the jury’s verdict is “against the
weight of the evidence” or “seriously erroneous.
i) Rule 59 (a): In General. New trial’s pose the only solution for verdict against the
weight-for-the-evidence because the damages are inadequate
ii)
iii) Rule 59 (b)
iv) Rule 59 (d) - (e)
e) Rule 60: “Relief from Judgment or Order”: [also limited] this rule is limited to grant
relief/seek relief from judgment, such that court can/may grant with limited circumstances, under
fraud/misconduct.
i) Rule 60 (a) - (c)
(1) Rule 60 (b) (4): Both render relief from judgment void under 60
(2) Rule 60 (b): 1 year after entry of judgment, max time bringing warrant of relief if
“reasonable time”
f) Rule 60 (d) (3)
g) Rule 61 “Harmless Error” errors can be made by court/judges of the court, party or a by a
jury. Under Rule 61, unless it is “highly probable” the evidence of error was “affecting the
party’s substantial rights” to a fair trial, then no new trial will be granted.
i) See Wilson v. Vermont Castings.

14) Appeals
a) 28 U.S.C. Section 1291
b) 28 U.S.C. Section 1292 (a) (1): Injunction: Order by trial court immediately requires a
party to do something; immediate effect on parties rights- rights are being subjected to
binding ruling (order) prior to trial; prevents a party from acting or behaving in a certain
manner or way). Must show irretrievable harm)
i) If granted, one party may suffer serious and irreputtable harm to their rights
c) 28 U.S.C. Section 1292 (b) Certification 1292 (b): allows you to go to the trial judge, case not
over yet, and no partial final judgment under rule 54 (b), however the party wants to appeal on the
Interlocutory basis- must prove to the trial judge, issue is appealable as long as you meet three
standards:
i) Question of law
ii) Have to show immediate appeal will materially advance the litigation (not to allow
interlocutory appeal are distraction)
iii) application must be reviewed within 10 days of appeals
(1) Interlocutory rulings don’t advance the case.
d) 28 U.S.C. Section 1651 (a)
e) Exceptions to the final Judgment Rule 54 (b) When an action presents more than one claim for
relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when
multiple parties are involved, the court may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly determines that there is no just reason
for delay.
i) Most of the claim must be resolved prior to the final judgment
f) Rule 52 (a) (1)
g) Rule 52 (a) (6)
h) Rule 52 (c)
i) RUle 54 (a)
15) Res Judicata (Claim Preclusion)
a) a) Final/Valid Prior Judgment: RJ applies even when case is on appeal – just needs trial court
judgment to exist
 b) On the Merits: Did the court discuss the substantive issues in the case? Judge/jury trial = yes.
Motion for improper venue / jurisdiction = no. 12(b)(6) = probably yes, because liberal
amendment policies.
c) Same Claim: A party who has asserted a right to relief arising out of a particular
transaction/occurrence must join all claims arising from it, or have those claims barred by RJ.
Concerned just with whether the claim COULD have been brought, not whether it actually was.
d) Same Parties: Parties are in privity with each other.
e) Exam: Often seen with joinder in a 2-part question of (1: Could this claim have been brought
initially? -> 2: Does RJ bar this claim from being brought in a subsequent action?)

16) Collateral Estoppel (Issue Preclusion) CE applies when:

a) Same Issue: Issue in 2nd case must be same as issue in 1st case.
b) Litigated: Issue must have been actually litigated.

c) Decided Against: Issue was decided on in a valid, final prior judgment, against the precluded
party.
d) Necessary: The decision on the issue in the prior action was necessary to the court’s
judgment.
16a) Nonmutual Collateral Estoppel (Issue Preclusion)
a) Defensive: P sues D1 and loses on an issue. P sues D2 later on the same issue. D2 can estop
P from re-litigating the issue. Easier to justify than offensive.

b) Offensive: P1 sues D and wins on an issue. P2 sues D later on the same issue. P2 may
sometimes estop D from re-litigating the issue that D lost to P1. Difficult to justify sometimes.

c) CE Rule: All 4 elements of CE apply here as well.

d) Nonmutual: A party not in the original suit seeks to use CE against one of the parties in the
original suit.

e) Rule of Thumb: Did the party being estopped have a full and fair shake at litigating the issue
before?
Factors:
i) Incentive: Did the estopped party have a strong incentive to litigate the issue before?
ii) Procedure: Was the procedural opportunity to litigate as broad before?
iii) Inconsistent Judgments: Any prior inconsistent judgments in the case
history?
iv) (Offensive Only) Joinder: Should P have joined in the earlier action?