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Civil Procedure Rules: A Comprehensive Guide to US District Court Proceedings, Cheat Sheet of Civil procedure

College of Charleston (CofC)Civil procedure

Federal Rules of Civil Procedure with notes.

Typology: Cheat Sheet

2023/2024

Uploaded on 02/28/2024

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TABLE OF CONTENTS
#1 (SCOPE & PURPOSE)....................................................................................................................1
#2 - 1 FORM OF ACTION.....................................................................................................................1
#3 - COMMENCING AN ACTION.........................................................................................................1
#4 - SUMMONS.....................................................................................................................................3
#4(a) - CONTENTS; AMENDMENTS.......................................................................................3
#4(a)(1) - CONTENTS........................................................................................................ 3
#4.1 - SERVING OTHER PROCESS..............................................................................................8
#5 - SERVING & FILING PLEADINGS & OTHER PAPERS................................................................9
#5.1 - CONST CHALLENGE TO STATUTE: NOTICE, CERT & INTERVENTION......................11
#5.2 - PRIVACY PROTECTION FOR FILINGS MADE W/ COURT.............................................12
#6 COMPUTING & EXTENDING TIME; TIME FOR MOTION PAPERS...........................................14
#7 - PLEADINGS ALLOWED; FORM OF MOTIONS & OTHER PAPERS.......................................16
#7.1 - DISCLOSURE STATEMENT..............................................................................................16
#8 - GEN RULES OF PLEADING.......................................................................................................17
#9 - PLEADING SPECIAL MATTERS................................................................................................19
#10 - FORM OF PLEADINGS.............................................................................................................21
#11 - SIGNING PLEADINGS, MOTIONS, & OTHER PAPERS; REPA TO COURT; SANCTIONS. 22
#12 - DEFS & OBJS: WHEN & HOW PRESENTED; MOTION FOR JUDGMENT ON PLEADINGS;
CONSOLIDATING MOTIONS; WAIVING DEFS; PRETRIAL HEARING..........................................24
#13 - COUNTERCLAIM & CROSSCLAIM.........................................................................................27
#14 - AMENDED & SUPPLEMENTAL PLEADINGS.........................................................................28
#1 (SCOPE & PURPOSE)
● Govern procedure in all civil actions & proceedings in U.S. district courts, except as stated in
Rule 81
● Should be construed, administered, & employed by court & parties to secure just, speedy, &
inexpensive determination of every action & proceeding
#2 - 1 FORM OF ACTION
● There = 1 form of action - civ action
● Establish that equity & CL has merged
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TABLE OF CONTENTS

#1 (SCOPE & PURPOSE).................................................................................................................... 1

#2 - 1 FORM OF ACTION..................................................................................................................... 1

#3 - COMMENCING AN ACTION......................................................................................................... 1

#4 - SUMMONS..................................................................................................................................... 3

#4(a) - CONTENTS; AMENDMENTS....................................................................................... 3 #4(a)(1) - CONTENTS........................................................................................................ 3 #4.1 - SERVING OTHER PROCESS.............................................................................................. 8 #5 - SERVING & FILING PLEADINGS & OTHER PAPERS................................................................ 9 #5.1 - CONST CHALLENGE TO STATUTE: NOTICE, CERT & INTERVENTION...................... 11 #5.2 - PRIVACY PROTECTION FOR FILINGS MADE W/ COURT............................................. 12 #6 COMPUTING & EXTENDING TIME; TIME FOR MOTION PAPERS........................................... 14 #7 - PLEADINGS ALLOWED; FORM OF MOTIONS & OTHER PAPERS....................................... 16 #7.1 - DISCLOSURE STATEMENT.............................................................................................. 16 #8 - GEN RULES OF PLEADING....................................................................................................... 17 #9 - PLEADING SPECIAL MATTERS................................................................................................ 19 #10 - FORM OF PLEADINGS............................................................................................................. 21 #11 - SIGNING PLEADINGS, MOTIONS, & OTHER PAPERS; REPA TO COURT; SANCTIONS. 22 #12 - DEFS & OBJS: WHEN & HOW PRESENTED; MOTION FOR JUDGMENT ON PLEADINGS; CONSOLIDATING MOTIONS; WAIVING DEFS; PRETRIAL HEARING.......................................... 24 #13 - COUNTERCLAIM & CROSSCLAIM......................................................................................... 27 #14 - AMENDED & SUPPLEMENTAL PLEADINGS......................................................................... 28

#1 (SCOPE & PURPOSE)

● Govern procedure in all civil actions & proceedings in U.S. district courts, except as stated in Rule 81 ● Should be construed, administered, & employed by court & parties to secure just, speedy, & inexpensive determination of every action & proceeding

#2 - 1 FORM OF ACTION

● There = 1 form of action - civ action ● Establish that equity & CL has merged

#3 - COMMENCING AN ACTION

● Civil action is commenced by filing a complaint w/ court ○ i.e. begins when P files compl ● Anything before complaint is pre-litigation

  • An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving summons
  • P may notify such a D that an action has been commenced & request that D waive service of a summons
  • Notice & request must: a) Be in writing & be addressed: ❖ To individual defendant; or ❖ For a D subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process b) Name court where complaint was filed c) Be accompanied by a copy of complaint, 2 copies of waiver form appended to this Rule 4, & a prepaid means for returning form d) Inform defendant, using form appended to this Rule 4, of consequences of waiving & not waiving service e) State date when request is sent f) Give D a reasonable time of at least 30 days after request was sent— or at least 60 days if sent to D outside any judicial district of U.S.—to return waiver & g) Be sent by first-class mail or other reliable means
  1. Failure to waiver
  • If a D located w/in U.S. fails, w/out good cause, to sign & return a waiver requested by a P located w/in U.S., court must impose on defendant: a) Expenses later incurred in making service & b) Reasonable expenses, including attorney's fees, of any motion required to collect those service expenses
  1. Time to answer after a waiver
  • A D who, before being served w/ process, timely returns a waiver need not serve an answer to complaint until 60 days after request was sent—or until 90 days after it was sent to D outside any judicial district of U.S.
  1. Results of filing a waiver
  • When P files a waiver, proof of service is not required & these rules apply as if a summons & complaint had been served at time of filing waiver
  1. juris & venue not waived
  • Waiving service of a summons does not waive any objection to PJ or to venue e) Serving an individual w/in a judicial district of U.S.
  • Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of U.S. by:
  1. Following state law for serving a summons in an action brought in courts of general juris in state where district court is located or where service is made; or
  2. Doing any of following: a) Delivering a copy of summons & of complaint to individual personally

b) Leaving a copy of each at individual's dwelling or usual place of abode w/ someone of suitable age & discretion who resides there; or c) Delivering a copy of each to an agent authorized by appointment or by law to receive service of process f) Serving an individual in a foreign country

  • Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not w/in any judicial district of U.S.: 1. By any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by Hague Convention on Service Abroad of Judicial & Extrajudicial Documents 2. If there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice: a) As prescribed by foreign country's law for service in that country in an action in its courts of general juris b) As foreign authority directs in response to a letter rogatory or letter of request; or c) Unless prohibited by foreign country's law, by: ❖ Delivering a copy of summons & of complaint to individual personally; or ❖ Using any form of mail that clerk addresses & sends to individual & that requires a signed receipt 3. By other means not prohibited by international agreement, as court orders g) Serving a minor or an incompetent person
  • Must be served by following state law for serving a summons or like process on such a D in an action brought in courts of general juris of state where service is made
  • Person who is not w/in any judicial district of U.S. must be served in manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3) h) Serving a corporation, partnership or association
  • Unless federal law provides otherwise or defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:
  1. In a judicial district of U.S.: a) In manner prescribed by Rule 4(e)(1) for serving an individual; or b) By delivering a copy of summons & of complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process &—if agent is one authorized by statute & statute so requires—by also mailing a copy of each to defendant
  2. At a place not w/in any judicial district of U.S., in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i) i) Serving U.S. & its agencies, corporations, officers or employees
  3. To serve U.S., a party must: a)
  • For a claim that arises under federal law, serving a summons or filing a waiver of service establishes PJ over a D if: a) D is not subject to juris in any state's courts of general juris; & b) Exercising juris is consistent w/ U.S. Constitution & laws l) Proving service
  1. Affidavit required
  • Unless service is waived, proof of service must be made to court
  • Except for service by a U.S. marshal or deputy marshal, proof must be by server's affidavit
  1. Service outside of U.S.
  • Service not w/in any judicial district of U.S. must be proved as follows: a) If made under Rule 4(f)(1), as provided in applicable treaty or convention; or b) If made under Rule 4(f)(2) or (f)(3), by a receipt signed by addressee, or by other evidence satisfying court that summons & complaint were delivered to addressee
  1. Validity of service
  • Failure to prove service does not affect validity of service
  • Court may permit proof of service to be amended m) Time limit for service
  • If a D is not served w/in 90 days after complaint is filed, court—on motion or on its own after notice to plaintiff—must dismiss action w/out prejudice against that D or order that service be made w/in a specified time
  • If P shows good cause for failure, court must extend time for service for an appropriate period
  • This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A) n) Asserting juris over property or assets
  1. Federal law
  • Court may assert juris over property if authorized by a federal statute
  • Notice to claimants of property must be given as provided in statute or by serving a summons under this rule
  1. State law
  • On a showing that PJ over a D cannot be obtained in district where action is brought by reasonable efforts to serve a summons under this rule, court may assert juris over defendant's assets found in district
  • juris is acquired by seizing assets under circumstances & in manner provided by state law in that district Duty to Avoid Unnecessary Expenses of Serving a Summons ● Rule 4 of Federal Rules of Civil Procedure requires certain Ds to cooperate in saving unnecessary expenses of serving a summons & complaint ● “Good cause” for failure to return a signed waiver of service does not include a belief that lawsuit is groundless, or that it has been brought in an improper venue, or that court has no juris over this matter or over D or defendant’s property

● If waiver is signed & returned, you can still make these & all other defenses & objections, but you cannot object to absence of a summons or of service ● If you waive service, then you must, w/in time specified on waiver form, serve an answer or a motion under Rule 12 on P & file a copy w/ court ● By signing & returning waiver form, you are allowed more time to respond than if a summons had been served

#4.1 - SERVING OTHER PROCESS

a) In general

  • Process—other than a summons under Rule 4 or a subpoena under Rule 45—must be served by a U.S. marshal or deputy marshal or by a person specially appointed for that purpose
  • May be served anywhere w/in territorial limits of state where district court is located &, if authorized by a federal statute, beyond those limits
  • Proof of service must be made under Rule 4(l) b) Enforcing orders: committing for civil contempt
  • An order committing a person for civil contempt of a decree or injunction issued to enforce federal law may be served & enforced in any district
  • Any other order in a civil-contempt proceeding may be served only in state where issuing court is located or elsewhere in U.S. w/in 100 miles from where order was issued

e) Sending it to a registered user by filing it w/ court's electronic-filing system or sending it by other electronic means that person consented to in writing—in either of which events service is complete upon filing or sending, but is not effective if filer or sender learns that it did not reach person to be served; or f) Delivering it by any other means that person consented to in writing— in which event service is complete when person making service delivers it to agency designated to make delivery

  1. Using court facilities c) Serving numerous Ds
  2. In general
  • If an action involves an unusually large number of Ds, court may, on motion or on its own, order that: a) Ds’ pleadings & replies to them need not be served on other Ds b) Any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings & replies to them will be treated as denied or avoided by all other parties; & c) Filing any such pleading & serving it on P constitutes notice of pleading to all partie
  1. Notifying parties d) Filing
  2. Required filings; certificate of service a) Papers after complaint
  • Any paper after complaint that is required to be served—must be filed no later than a reasonable time after service
  • Disclosures under Rule 26(a)(1) or (2) & following discovery requests & responses must not be filed until they are used in proceeding or court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, & requests for admission b) Certificate of service
  • No certificate of service is required when a paper is served by filing it w/ court's electronic-filing system
  • When a paper that is required to be served is served by other means: ❖ If paper is filed, a certificate of service must be filed w/ it or w/in a reasonable time after service; & ❖ If paper is not filed, a certificate of service need not be filed unless filing is required by court order or by local rule
  1. Non-electronic filings
  • A paper not filed electronically is filed by delivering it: a) To clerk; or b) To a judge who agrees to accept it for filing, & who must then note filing date on paper & promptly send it to clerk
  1. Electronic filing & signing a) By a represented person- generally required; exceptions
  • Person represented by an attorney must file electronically, unless non electronic filing is allowed by court for good cause or is allowed or required by local rule b) By an unrepresented person
  • When Allowed or Required. A person not represented by an attorney: ❖ May file electronically only if allowed by court order or by local rule; & ❖ May be required to file electronically only by court order, or by a local rule that includes reasonable exceptions c) Signing
  • A filing made through a person's electronic-filing account & authorized by that person, together w/ that person's name on a signature block, constitutes person's signature d) Same as a written paper
  • A paper filed electronically is a written paper for purposes of these rules
  1. Acceptance by clerk
  • Clerk must not refuse to file a paper solely bc it is not in form prescribed by these rules or by a local rule or practice

#5.1 - CONST CHALLENGE TO STATUTE: NOTICE, CERT &

INTERVENTION

a) Notice by a party

  • A party that files a pleading, written motion, or other paper drawing into question constitutionality of a federal or state statute must promptly: 1. File a notice of constitutional question stating question & identifying paper that raises it, if: ❖ Federal statute is questioned & parties do not include U.S., one of its agencies, or one of its officers or employees in an official capacity; or ❖ State statute is questioned & parties do not include state, one of its agencies, or one of its officers or employees in an official capacity 2. Serve notice & paper on Attorney General of U.S. if a federal statute is questioned—or on state attorney general if a state statute is questioned— either by certified or registered mail or by sending it to an electronic address designated by attorney general for this purpose b) Certification by court
  • Court must, under 28 U.S.C. §2403, certify to appropriate attorney general that a statute has been questioned c) Intervention; final decision of merits
  • Unless court sets a later time, attorney general may intervene w/in 60 days after notice is filed or after court certifies challenge, whichever is earlier
  • Before time to intervene expires, court may reject constitutional challenge, but may not enter a final judgment holding statute unconstitutional d) No forfeiture

g) Option for filing a reference list

  • Filing that contains redacted information may be filed together w/ a reference list that identifies each item of redacted information & specifies an appropriate identifier that uniquely corresponds to each item listed
  • List must be filed under seal & may be amended as of right
  • Any reference in case to a listed identifier will be construed to refer to corresponding item of information h) Waiver of protection of identifiers
  • Person waives protection of Rule 5.2(a) as to person's own information by filing it w/out redaction & not under seal

#6 COMPUTING & EXTENDING TIME; TIME FOR MOTION

PAPERS

● Deadlines ● Don't use shortcuts- count days (lots of exceptions/rules of which days count- EX: holidays, business days, etc.) a) Computing time

  • Following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time 1. Period stated in days or a longer unit ❖ Exclude day of event that triggers period ❖ Count every day, including intermediate Saturdays, Sundays, & legal holidays; & ❖ Include last day of period, but if last day is a Saturday, Sunday, or legal holiday, period continues to run until end of next day that is not a Saturday, Sunday, or legal holiday 2. Period stated in hours ❖ Begin counting immediately on occurrence of event that triggers period ❖ Count every hour, including hours during intermediate Saturdays, Sundays, & legal holidays; & ❖ If period would end on a Saturday, Sunday, or legal holiday, period continues to run until same time on next day that is not a Saturday, Sunday, or legal holiday 3. Inaccessibility of clerk’s office ❖ On last day for filing under Rule 6(a)(1), then time for filing is extended to first accessible day that is not a Saturday, Sunday, or legal holiday; or ❖ During last hour for filing under Rule 6(a)(2), then time for filing is extended to same time on first accessible day that is not a Saturday, Sunday, or legal holiday 4. “Last day” defined - Unless a diff time is set by a statute, local rule, or court order, last day ends: ❖ For electronic filing- at midnight in court's time zone ❖ For filing by other means- when clerk's office is scheduled to close 5. “Next day” defined - Determined by continuing to count forward when period is measured after an event & backward when measured before an event 6. “Legal holiday” defined - Day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day,

#7 - PLEADINGS ALLOWED; FORM OF MOTIONS & OTHER

PAPERS

● Pleading is a document that asserts claims & motions a) Pleadings

  • Only these pleadings are allowed:
    1. Complaint
    2. Answer to complaint
    3. Answer to a counterclaim designated as a counterclaim;
    4. Answer to a crossclaim
    5. Third-party complaint
    6. Answer to a third-party complaint; &
    7. If court orders one, a reply to an answer b) Motions & other papers
  1. In general
  • Request for a court order must be made by motion. motion must: ❖ Be in writing unless made during a hearing or trial ❖ State w/ particularity grounds for seeking order; & ❖ State relief sought
  1. Form
  • Rules governing captions & other matters of form in pleadings apply to motions & other papers

#7.1 - DISCLOSURE STATEMENT

a) Who must file; contents

  • Nongovernmental corporate party must file 2 copies of a disclosure statement that: ❖ Identifies any parent corporation & any publicly held corporation owning 10% or more of its stock; or ❖ States that there is no such corporation b) Time to file; supplemental filing
  • A party must: ❖ File disclosure statement w/ its first appearance, pleading, petition, motion, response, or other request addressed to court; & ❖ Promptly file a supplemental statement if any required information changes

#8 - GEN RULES OF PLEADING

a) Claim for relief

  • Must contain:
    1. Short & plain statement of grounds for court's juris, unless court already has juris & claim needs no new juris support
    2. Short & plain statement of claim showing that pleader is entitled to relief; &
    3. Demand for relief sought, which may include relief in alternative or diff types of relief b) Defenses admissions & denials
  1. In general
  • In responding to a pleading, a party must: ❖ State in short & plain terms its defenses to each claim asserted against it; & ❖ Admit or deny allegations asserted against it by an opposing party
  1. Denials-responding to substance
  • Must fairly respond to substance of allegation
  1. General & specific denials
  • Party that intends in good faith to deny all allegations of a pleading— including juris grounds—may do so by a general denial
  • Party that does not intend to deny all allegations must either specifically deny designated allegations or generally deny all except those specifically admitted
  1. Denying part of an allegation
  • Party that intends in good faith to deny only part of an allegation must admit part that is true & deny rest
  1. Lacking knowledge or information
  • Party that lacks knowledge or information sufficient to form a belief about truth of an allegation must so state, & statement has effect of a denial
  1. Effect of failing to deny
  • Allegation—other than one relating to amount of damages—is admitted if a responsive pleading is required & allegation is not denied
  • If a responsive pleading is not required, an allegation is considered denied or avoided c) Affirmative defenses
  1. In general
  • In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: ❖ accord & satisfaction ❖ arbitration & award ❖ assumption of risk ❖ contributory negligence ❖ duress ❖ estoppel ❖ failure of consideration ❖ fraud

#9 - PLEADING SPECIAL MATTERS

● Special pleading rule in claims to fraud ● Fraud must be alleged w/ particularly- more than is required in rule 8 a) Capacity or authority to sue; legal existence

  1. In general
    • Except when required to show that court has juris, a pleading need not allege: ❖ Party's capacity to sue or be sued ❖ Party's authority to sue or be sued in a representative capacity; or ❖ Legal existence of an organized association of persons that is made a party
  2. Raising those issues
    • Party must do so by a specific denial, which must state any supporting facts that are peculiarly w/in party's knowledge b) Fraud or mistake
  • In alleging fraud or mistake, a party must state w/ particularity circumstances constituting fraud or mistake
  • Malice, intent, knowledge, & other conditions of a person's mind may be alleged generally c) Conditions precedent
  • In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed
  • When denying that a condition precedent has occurred or been performed, a party must do so w/ particularity d) Official document or act
  • In pleading an official document or official act, it suffices to allege that document was legally issued or act legally done e) Judgement
  • In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi- judicial tribunal, or a board or officer, it suffices to plead judgment or decision w/out showing juris to render it f) Time & place
  • Allegation of time or place is material when testing sufficiency of a pleading g) Special damages
  • If an item of special damage is claimed, it must be specifically stated h) Admiralty or maritime claim
  1. How designated
  • If a claim for relief is w/in admiralty or maritime juris & also w/in court's SMJ on some other ground, pleading may designate claim as an admiralty or maritime claim for purposes of Rules 14(c), 38(e), & 82 & Supplemental Rules for Admiralty or Maritime Claims & Asset Forfeiture Actions
  • Claim cognizable only in admiralty or maritime juris is an admiralty or maritime claim for those purposes, whether or not so designated
  1. Designation for appeal
  • Case that includes an admiralty or maritime claim w/in this subdivision (h) is an admiralty case w/in 28 U.S.C. §1292(a)(3)