#12248 - Contents And Prologue - Civil Procedure

CIVIL PROCEDURE OUTLINE

PROF. CHARLES SILVER

CONTENTS

PROLOGUE: PURPOSES & TIMETABLE

2. Scope of the Rules – FRCP 1–2

2. Timetable

STAGE ONE: JURISDICTION, PRECLUSION, & CLASS ACTIONS

3. Personal Jurisdiction – FRCP 4

5. S.M.J. Part I: Fed. Question - 28 U.S.C. § 1331

6. S.M.J. Part II: Diversity (Amount-in-Controversy) – 28 U.S.C. § 1332

6 S.M.J. Part III: Diversity (Citizenship) – 28 U.S.C. § 1332

8. Supplemental Jurisdiction – 28 U.S.C. § 1367

9. Res Judicata & Collateral Estoppel

9. Class Actions – FRCP 23

STAGE TWO: VENUE & REMOVAL

11 Venue – 28 U.S.C. §§1391, 1392

13 Change in Venue & MDL – 28 U.S.C. §§1404, 1406, 1407

14. Removal – 28 U.S.C. §§1441, 1446, 1447

INTERMISSION: RULES GOVERNING PLEADINGS & MOTIONS

15. General Rules of Pleadings – FRCP 4, 5, 8(a), 9(b), 10, 11

15 General Rules of Motions – FRCP 6(c), 7(b), 11.

15 Multiple & Frivolous Claims –FRCP 8(d)(3), 11, 18, 28

U.S.C. §1927

16. Computing & Extending Time – FRCP 6

STAGE THREE: THE PLAINTIFF’S COMPLAINT

17. Complaint – FRCP 3, 8(a), 8(d), 9–11

18. Summons – U.S. Const. amends. V, XIV; FRCP 4

18 The Real Parties – FRCP 17

19. Permissive Joinder of Parties – FRCP 20, 21

20. Prejudgment Seizures – U.S. Const. amends. V, XIV; FRCP 64

21. Preliminary Injunctions & Temporary Restraining Orders –FRCP 4.1, 65

21 Dismissal of Claims – FRCP 41

22. Default Judgment – FRCP 54(c); 55, 60(b)

STAGE FOUR: THE DEFENDANT’S RESPONSE

23 Pre-answer Motions –FRCP 12(b), 12(e), 12(f), 12(g), 12(h), 21

24 Required Joinder of Parties –FRCP 19

25 Answer –FRCP 8(b)–(d), 10, 11, 12(a), 12(b), 12(e), 12(f), 12(h)

26. Counterclaims – FRCP 13(a)–(e)

26 Crossclaims – FRCP 13(g)

27. Impleading – FRCP 14

28. Offer of Judgment & Settlement – FRCP 68

SECOND INTERMISSION: INTERVENTION & THIRD PARTIES

29. Intervention & Third Parties – FRCP 24

STAGE FIVE: JUDGMENT ON THE PLEADINGS, AMENDMENTS, & SANCTIONS

30. Motion for a Judgment on the Pleadings – FRCP 12(c)

30 Amendments –FRCP 15

31. Sanctions – FRCP 11, 16, 37, U.S.C. § 1927

31. Interlocutory Appeal

STAGE SIX: DISCOVERY

31. General Discovery – FRCP 26

32. Pretrial Conference – FRCP 16; 26(f)

32 Depositions – FRCP 27–32

33. Interrogatories – FRCP 33

33 Producing Documents – FRCP 34

34 Physical & Mental Examinations – FRCP 35

34. Requests for Admissions – FRCP 36

34 Subpoenas – FRCP 45

34 Discovery Sanctions – FRCP 37

STAGE SEVEN: SUMMARY JUDGMENT

35. Summary Judgment – FRCP – 56

STAGE EIGHT: THE TRIAL

36. Consolidation & Separate Trials – FRCP 42

36. Judgment as a Matter of Law – FRCP 50(a)

STAGE NINE: JUDGMENT, COSTS, & APPEAL

36 Judgment – FRCP 54, 65(d)

37 Declaratory Judgment – 28 U.S.C. §§ 2201, 2202; FRCP 57

37 Renewed Judgment as a Matter of Law – FRCP 50(b)

37 Costs of Suit – 28 U.S.C. § 1920; FRCP 54(d), 68

38 Attorney’s Fees – 42 USC §1988; FRCP 54(d), 68

39 Appeal – FRCP 3, 4

PROLOGUE: PURPOSES & TIMETABLE

1. Scope of the Rules – FRCP 1–2

   1. Textual Rule

      1. The rules should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. FRCP 1.

      2. There is one form of action—the civil action. FRCP 2.

2. Timetable

Summons, Removal & Jurisdiction

Service of Process: 120 days after filing complaint. FRCP 4(m).

Responding to a Waiver Request: 30 days after request was sent or 60 days if outside U.S. FRCP 4(d)(1)(F).

Removal:

Δ: 30 days after ASAP; 1 year max if diversity. 28 U.S.C. § 1446(b).

Π: 30 days after notice to motion for remand. 28 U.S.C. § 1447(c).

Subject-Matter Jurisdiction: statute of limitations is tolled; Π has 30 days after dismissal to re-file suit. 28 U.S.C. § 1367(d).

Pre-Answer Motions

12(b) or (e) Motion: before the responsive pleading, in a later pleading, or at any time, depending on the motion. FRCP 12(h).

12(f) Motion to Strike: before the responsive pleading, or if not applicable, within 21 days. FRCP 12(f)(2).

Notice of a Hearing: at least 14 days earlier. FRCP 6(c)(1).

Opposing Affidavit: at least 7 days earlier. FRCP 6(c)(2).

Amended Responses after Successful 12(e) Motion:

Π*: 14 days to create a more definite statement. FRCP 12(e).

Δ*: 14 days after service of more definite statement. FRCP 12(a)(4).

Responsive Pleadings

Answer: 21 days after being served, 60 days after request for a waiver was sent, or 90 days if Δ is outside the U.S. FRCP 12(a)(1)(A).

Answer to a Counterclaim or Crossclaim: 21 days. FRCP 12(a)(1)(B).

Reply to an Answer: 21 days. FRCP 12(a)(1)(C).

Responsive Pleadings after Denied Pre-Answer Motion: 14 days. FRCP 12(a)(4).

Third-Party Impleader as a Matter of Course: within 14 days after serving answer. FRCP 14(a)(1).

Offers of Judgment

Offer of Judgment: at least 14 days before trial. FRCP 68.

Acceptance of Offer of Judgment: 14 days after service. FRCP 68.

Intervention

Intervention by a Third-Party: on timely motion. FRCP 24.

Amendments

Amendment as a Matter of Course: 21 days after service or responsive pleading/motion. FRCP 15(a)(1) .

Response to Amended Pleading: at least 14 days. FRCP 15(a)(3).

Discovery

Pre-Scheduling Conference: at least 21 days before scheduling conference under 16(b). FRCP 26(f).

Required Disclosures: within 14 days after pre-scheduling conference. FRCP 26(f).

Judgment

Notice of a Default Judgment Hearing: After default is entered, but 7 days before hearing. FRCP 55(b).

Motion for Judgment on the Pleadings: After pleadings are closed but not too early to delay trial. FRCP 12(c).

Summary Judgment: anytime until 30 days after discovery. FRCP 56(b).

Judgment as a Matter of Law: after other party has presented evidence...