Service of process (Greene)

  1. was summons properly served Rule 4(c)(2), (d), (e)
  2. was waiver properly mailed
  3. did summons or waiver include correct information + copy of complaint 4(a), 4(d)
  4. did waiver include means to return 4(d)(2)(G)
  5. were time limits met:
  6. 120 days to serve process
  7. 20 days to serve answer after summons 12(a)
  8. 30 days to answer waiver request (60 outside US)
  9. 60 days to file answer after waiving summons (90 outside US)
  10. can plaintiff collect costs for failure to give waiver?
  11. was service of process adequate to provide due process (Greene v Lindsey)
  12. Is service was inadequate, will judge require it to be redone
  13. Mistakes open plaintiff to 12(b)(4-5) motions

Complaint (Rannels)

  1. Did complaint provide adequate notice of grievance and state claim for relief 8(a)
  2. If not, open to 12(e) motion
  3. Plaintiff has 10 days to refile complaint if 12(e) motion was granted 12(4)(B)
  4. Did it only plead conclusions of law
  5. Is redrafting or amendment necessary or allowable
  6. Filing complaint stops clock…what is statute of limitations situation
  7. Did complaint invoke substantive law
  8. If not, open to 12(b)(6) motion
  9. Is there a strategic reason plaintiff might have wanted a more or less detailed complaint
  10. Is evidentiary material omitted
  11. Are these pleadings sanctionable (by opposing party) under Rule 11 (see below)

Pre-Answer Motions & Answer & Affirmative Defenses

  1. Can any Rule 12 motions make this case go away?
  2. Were 12(e) and (f) motions made before answer
  3. Stop the clock on filing of response
  4. If 12(e) motion is granted and P refiles, D can file a 2nd pre-answer motion with other 12(b) motions
  5. Does 12(f) motion meet technical requirements?
  6. Were 12(b)(2-5) motions properly bundled and all made in the first answer 12(h)(1), (g)
  7. Don’t use them, you waive them
  8. Better to make a 12(b)(4-5) motion in a pre-answer
  9. 12(b) motions do not hold up discovery, but do stop clock on answer
  10. (12(f) does not stop clock on filing a response)
  11. Was timing correct (answer within 20 days of service or 60 days of sending request for waiver)
  12. After pleadings closed, if no material facts remain at issue, and dispute can be resolved based on pleadings, file 12(c). Plaintiff cannot amend in response.
  13. Response to an amended pleading has10 days or time left before response to original pleading, whichever is longer 15(a)

12(b)(6) Motions

  1. 12(b)(6) Motions: Complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts that would entitle him to relief
  2. View pleadings in light most favorable to plaintiff, assume all allegations are true, resolve doubts in favor of P.
  3. In 12(b)(6) defendant concedes truthfulness of allegations
  4. Was other material (evidence) introduced? Rule 56 summary judgment
  5. Appeals: granted than yes, denied than no. BUT: Q.I. by collateral order doctrine
  6. Is it better to use a Rule 11 motion?

Answer to do list:

  1. Admit, deny, no information 8(b) (Zielinskil)
  2. General denial, qualified general denial, specific denial, don’t know means no
  3. Forgot to deny where response is required? Oops: it’s admitted 8(d)
  4. Do denials meet specificity and substance of complaint 8(b)
  5. General denials are subject to Rule 11, so be careful
  6. Raise affirmative defenses 8(c) (Layman)
  7. May be waived if not raised as affirmative defenses
  8. Do not require an answer because automatically denied
  9. Were these raised in answer…can’t wait until trial
  10. Assert counterclaims (Rule 13)
  11. Motion for summary judgment? Or is it too early?
  12. Defendant can file SJ any time, plaintiff must wait until 20 days after service of complaint
  13. Go for Rule 11 sanction

Amendment & Relation Back (Beeck, Moore, Bonerb)

  1. Does a party need to amend?
  2. For instance, because of discovery nuancing the case?
  3. May party amend? Technical & substantive requirements:
  4. Parties are free to amend once before a responsive pleading is served 15(a)
  5. 12(b) motions are not responsive pleading 7(a) and (b)
  6. If pleading requires no response & not yet on trial calendar, may amend within 20 days after pleading served 15(a)
  7. Amendments allowed if [15(b)] (Foman v Davis)
  8. Parties consent to issue not raised in original pleadings
  9. Parties object, but new issue does not create prejudice
  10. Relation back 15(c):
  11. Statute of limitations has not run
  12. If it has run, new complaint relates to earlier one
  13. Special requirements to change name of party 15(c)(3)
  14. Is this actually a supplemental pleading, new things since complaint filed 15(d)?
  15. After amendments, litigants may withdraw their responses and replead
  16. New 12(b) motions only allowed if amended pleading raises them for first time
  17. Reasons not to grant leave to amend
  18. Undue delay
  19. Bad faith in leaving it out of original filing
  20. Prejudice to the other party: Courts have discretion to decide prejudice
  21. Generous presumption in favor of allowing appeals

Rule 11 and when it applies (Business Guides, Gerbode)

  1. What violates Rule 11(b):
  2. Writing presented for improper purposes, e.g. to harass, delay, increase costs 11(b)(1)
  3. Claims, defenses, legal contentions are frivolous or not warranted by law 11(b)(2)
  4. Allegations and contentions have factual support 11(b)(3)
  5. Denials are warranted by evidence 11(b)(4)
  6. Was there a justifiable reason for mistake? (Time pressure, e.g.)
  7. Was there actual negligence?
  8. Was the Rule 11 motion made separately from all other motions? 11(c)(1)(A)
  9. Does motion describe specific conduct alleged to violate 11(b)?
  10. Was 21 day safe harbor allowed 11(c)(1)(A)
  11. Did nonmovant take corrective measures?
  12. Court can initiate sanctions sua sponte 11(c)(1)(B)
  13. No need for safe harbor period if by court sua sponte
  14. Did court explain basis for order, describe bad conduct, explain sanctions? 11(c)(3)
  15. Were lawyer’s fees sanctions of last resort/
  16. Were sanctions intended only as deterent? 11(c)(2)
  17. Were sanctions awarded against proper person (lawyer or party)? 11(c)(2)(A)
  18. Was Rule 11 mistakenly used for discovery rather than Rule 37?
  19. Was there only a threat of a lawsuit? No Rule 11 allowed
  20. Was motion made against an opposing party?
  21. Does motion apply only to in-court actions and only to documents?
  22. Would it have been better to use a 12(b)(6) motion?
  23. Does not stop clock.

Discovery & sanctions

  1. Correct participation in automatic disclosure?
  2. Were objections to automatic disclosure properly made during 26(f) conference?
  3. Within time limits:
  4. 14 days after 26(f) conference?
  5. Testifying expert report 90 days before trial? Or 30 days before trial for rebuttal?
  6. Exhibits, witnesses to be presented at trial 30 days before trial
  7. But not released/sought before 26(f) conference?
  8. Objections not raised within 14 days of disclosure are deemed waived
  9. Is requested material relevant not privileged?
  10. Does not have to be admissible at trial
  11. Is requested material reasonable, not harassing, delaying, too expensive 26(g)(2)
  12. Is the material within our control?
  13. Should we seek a protective order 26(c)
  14. Is privileged material so important that its value outweighs the intrusion of privacy?
  15. Did we try to work out problem with other party before going to court?
  16. Can we show good cause: undue annoyance, embarrassment, oppression, burden or expense?
  17. What kind of limits do we seek
  18. Was protective motion filed by party or witness from who info is sought?
  19. Is opponent trying to depose our witness twice? Stop with protective order.
  20. Attorney client privilege protects only communication not facts.
  21. Was privilege waived by voluntary disclosure?
  22. Can’t stonewall disclosure because other party is
  23. Disclosure only pertains to disputed allegations
  24. Did testifying expert witness submit report on time (90 days before trial) 26(a)(2)(B)
  25. Is discovery within 26(b)(2) limits of reasonableness
  26. Not cumulative or duplicative
  27. Could not be obtained elsewhere cheaper
  28. Party already had ample opportunity to discover
  29. Burden or expense outweighs benefit
  30. Have we correctly supplemented disclosure and discover as new info comes up?
  31. In writing unless conveyed in another form during discovery 26(e)(1-2)
  32. If it’s really important to case, make sure it gets conveyed

Work Product Rule 26(b)(3)

  1. Is it really work product: Prepared in anticipation of litigation
  2. If we want it, is there
  3. Substantial need
  4. Hardship obtaining equivalent material (if not, no discovery)
  5. Is there a way to get same info using other discovery tools?
  6. Can mental impressions and trial strategy be redacted
  7. Is person whose work is protected an attorney or representative of the party?
  8. Is this my own statement that I am requesting a copy of?
  9. Are we just trying to freeload?
  10. Has a suit been filed? If not, it’s not necessarily work product.
  11. Is it a fact or an impression/opinion/strategy that is being sought?
  12. If info refused as work product, did party still describe it 26(b)(5)
  13. Did party expressly claim privilege 26(b)(5)

Non-testifying experts 26(b)(4)(B)

  1. Is this really an expert or is it actually an agent or employee of the company? If yes, not protected, can be discovered as a witness.
  2. Was expert formally consulted and retained? If not, no discovery
  3. Is there showing of exceptional need because party can’t get info elsewhere? 26(b)(4)(B)
  4. Can court make party share expert’s expenses or is it unjust? 26(b)(4)(C)

Discovery tools

  1. Normally have to answer questions in a deposition [30(c)] unless lawyer argues privilege 30(d)(3), (4), (1)
  2. Rule 33 (interrogatories)-Rule 34 (documents) apply to parties only
  3. Non-party has to be subpoenaed in order to be deposed Rule 45.
  4. Does interrogatory have more than 25 parts? Rule 33
  5. Has answer to interrogatories been served in under 30 days? Rule 33.
  6. Were grounds for objections to interrogatories stated with specificity? Otherwise waived.
  7. If we offer to produce business records, is burden of searching substantially the same and do we provide instructions about organization and location?
  8. Were interrogatories served on all parties, not just the one from whom info is sought?
  9. Is materia/documents/property requested under Rule 34 under control of party from whom sought?
  10. Were responses/objections served within 30 days of request? Failure to object: waiver.
  11. Do we need a 37(a) sanction for failure to answer or challenge interrogatory, produce documents, get admissions 37(a)(4)?
  12. Is mental or physical exam really necessary because at issue in the case/
  13. Did we get a court order
  14. Could we show good cause and notice to all parties
  15. Did we answer request for admission within 30 days?
  16. If not, matter is deemed admitted
  17. Reasons for objections have to be stated
  18. Can’t plead lack of knowledge without reasonable inquiry
  19. Were all parties served with request
  20. Don’t want to answer or object: move for protective order but have to show tried to work it out among partied first

Discovery Sanctions Rule 37

  1. Show tried to work out problem between parties first?
  2. Motion to compel—wait for response—motion for sanctions, only for discovery, not disclosure
  3. Evasive or incomplete answers treated as failure to respond, disclose, etc.
  4. Do we risk having our motion to compel denied and getting stuck with paying expenses of opponent?
  5. What sanctions will court impose for failures to comply? 37(b)(2)(A-E)
  6. Did party try to introduce non-disclosed info at trial, was omission harmless 37(c)(1)
  7. Imposing sanctions is not discretionary (Chudasama)

Settlement:

Court has to approve settlement in cases involving minors, class actions, and some multi-defendant cases Rule 23(e).

Preliminary Injunctions

  1. Meet standards
  2. Irreparable harm
  3. Plaintiff will probably prevail on merits -OR- fair chance of prevailing
  4. Balance of hardships tips toward plaintiff
  5. Granting is in public interest
  6. Correct test (Inglis)
  7. Appeal allowed §1292(a)(1)
  8. Problem calculating damages in order to require plaintiff post a bond?
  9. Was notice given, except not necessarily for TRO? 65(a)(1), (b)
  10. Did order give reason for its issuance, describing acts to be restrained

Summary Judgment standards

  1. Was timing correct? 56(a), (b), (c)
  2. Has trial started already? (Use JML Rule 50)
  3. Is legal standard met: no genuine issues of material fact & movant is entitled as matter of law
  4. Judge should not have to weigh evidence or find facts
  5. Construe evidence, inferences, doubts in favor of non-movant, take all evidence of non-movant as true
  6. This can only be disagreement on the law
  7. Documents offered do not have to meet trial evidence standards
  8. Or can plaintiff prove the elements of his complaint to extent that there is a jury question?
  9. If plaintiff makes motion, does he have preponderance of evidence on every element?
  10. Does defendant show that plaintiff has not proven his case, burden of persuasion
  11. Does plaintiff prove his case, burden of persuasion and proof
  12. Were affidavits personal knowledge only and facts admissible in evidence 56(e)
  13. Did adverse party try to rest on mere allegations? 56(e)
  14. Is it too early in process for SJ? 56(f)
  15. Affidavits made in bad faith=sanctionable 56(g)
  16. Was appeal de novo?

JML and 12(b)(6) comparison

  1. SJ uses outside evidence
  2. SJ can resolve portions of complaint
  3. Sj can be brought by either party
  4. SJ decision made on the merits
  5. 12(b)(6) only based on allegations in pleadings
  6. 12(b)(6) is all or nothing
  7. 12(b)(6) can only be brought by D.
  8. 12(b)(6) plaintiff can amend complaint
  9. 12(b)(6) no decision on the merits

Juries:

  1. Jury trial right: law or equity based on claim and damages
  2. Was demand served within 10 days of end of pleading
  3. Object to jury demand by filing 12(f) motion to strike
  4. Does case concern more than $20?
  5. Were objections to jury instructions timely 49(a), 51

Choosing the jury and permissible peremptories

  1. Chosen from a random pool representing a cross-section of community
  2. Peremptories not based on race or gender, don’t show prima facie pattern of bias

Judgment as a Matter of Law or New Trial [Rule 50, 59]

  1. Is this a jury trial for JML/JNOV?
  2. Was motion made before case sent to jury? 50(a)(2)
  3. Was motion for JML supported with argument?
  4. Could no reasonable jury find for the other side?
  5. Was motion for JML made in order to be preserved for later? 50(b). If not, then waived.
  6. Was motion for JNOV or request for new trial filed within 10 days of entry of judgment?
  7. If court granted JNOV motion did it also conditionally rule on new trial motion?
  8. For new trial were affidavits filed with motion? Were replies filed within 20 days?
  9. New trial: was there a procedural error or flawed verdict, or was it a harmless error?

Standards of appeal, final judgment rule

  1. Did party appealing lose below?
  2. Would appeal decision make a difference in the award?
  3. Is point moot?
  4. Did party appealing raise issue below? If not, waives right to appeal it.
  5. Was it a final decision or an injunction? §1292(a)
  6. Does not apply to TRO
  7. Is there a controlling matter of law on which DC wants review? §1292(b)
  8. Writ of mandamus: judicial usurpation of power, esp. denial of a jury trial
  9. Does Collateral Order Doctrine come into play?
  10. Issue is distinct from the merits
  11. Issue has been conclusively determined by trial court
  12. Issue is effectively unreviewable on appeal
  13. Issue is important enough to merit appeal
  14. Should appeal be handled de novo: matter of law
  15. Abuse of discretion: application of law to fact, was TC in range of ok conduct
  16. Clearly erroneous: proper fact finding
  17. No clearly erroneous where there are two possible interpretations (Anderson) Rule 52(a)
  18. Was notice of appeal filed within 30 days (60 days when against United States)
  19. Don’t file appeal too early, though, before final judgment
  20. Was error harmless Rule 61?

Policy questions:

  1. Peremptory challenges: keep them or get rid of them (pg. 33)
  2. German v. American system: better, worse, or can learn from each other
  3. Jury system, 7th Amendment standards: good or bad
  4. Pleading
  5. Historical development
  6. Code pleading v. rule pleading
  7. Pleading in German system
  8. Is notice pleading sufficient or does it put too much weight on discovery
  9. Problem of notice pleading in heightened standards situations like fraud [9(b)] (Leatherman, Gomez)
  10. Allocating burdens of pleading
  11. ADR: better or worse than litigation
  12. Discovery
  13. too costly, unfair, too much room for abuse, need more specific pleading
  14. compare with German system
  15. Is it the court’s job to get to truth or to settle disputes? Neary & US Bancorp