Civil Procedure

Question 1

In what manner should the FRCP be construed and administered?

Answer 1

They should be construed, administered, and employed by the courts and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. FRCP 1.

Question 2

How is a civil action commenced?

Answer 2

By filing a complaint with the court. FRCP 3.

Question 3

Under what circumstances can a court extend a deadline by which a task must be completed?

Answer 3

When an act may or must be done within a specified time, the court may, for good cause, extend the time:

(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or

(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

FRCP 6.

Question 4

How must a party make a request for a court order?

Answer 4

Through a motion. FRCP 7.

Question 5

What are the three requirements for a motion?

Answer 5

(A) be in writing unless made during a hearing or trial;

(B) state with particularity the grounds for seeking the order; and

(C) state the relief sought.

FRCP 7.

Question 6

When must a party file its corporate disclosure statement?

Answer 6

with its first appearance, pleading, petition, motion, response, or other request addressed to the court. FRCP 7.1

Question 7

What are the three things that a pleading that states a claim for relief must contain?

Answer 7

A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

FRCP 8.

Question 8

What are the two things that a party must do in responding to a pleading?

Answer 8

In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

FRCP 8.

Question 9

Is any specific form required for pleadings?

Answer 9

No. Each allegation must be simple, direct, and concise. No specific form is required. FRCP 8.

Question 10

For a claim alleging fraud or mistake, what must a party plead?

Answer 10

A party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. FRCP 9.

Question 11

Does a pleading need to be verified by a party?

Answer 11

No (unless the court orders otherwise). In general, a pleading, motion, or other paper only must be signed by one attorney of record for the party. FRCP 11.

Question 12

As it relates to motions and pleadings, for what reasons can a court impose sanctions upon a party upon request?

Answer 12

• it is being presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
• the claims, defenses, and other legal contentions are not warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
• the factual contentions have no evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
• the denials of factual contentions are not warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

FRCP 11

Question 13

If a party files a motion for sanctions, how can the other party try to correct the alleged error or violation?

Answer 13

If the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. FRCP 11.

Question 14

Can the court raise potentially sanctionable conduct on its own?

Answer 14

Yes - the court, on its own, may issue an order directing a party to show cause as to why its conduct should not be sanctioned under Rule 11. FRCP 11.

Question 15

What are some penalties that a court can impose in sanctioning a party or attorney?

Answer 15

A sanction must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation. FRCP 11.

Question 16

When must a defendant file a responsive pleading to a complaint?

Answer 16

Within 21 days after being served with the summons and complaint; or, if the defendant waived service, within 60 days after the request for a waiver was sent (90 days for defendant outside US). FRCP 12.

Question 17

What’s the deadline for serving an answer to a crossclaim or counterclaim?

Answer 17

21 days after being served with the pleading that contains the counterclaim or crossclaim. FRCP 12.

Question 18

What defenses can a party raise by motion under Rule 12?

Answer 18

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

FRCP 12.

Question 19

When can a party file a motion for judgment on the pleadings?

Answer 19

After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings. FRCP 12.

Question 20

If the court determines at any time throughout the case that it lacks subject matter jurisdiction, what must it do?

Answer 20

Dismiss the action. FRCP 12.

Question 21

In federal court, what’s the time period for a defendant to add a nonparty who may be liable to the defendant?

Answer 21

The defendant, acting as a third-party plaintiff, must serve a summons and complaint on the nonparty within 14 days after serving its original answer; otherwise, it must obtain leave of court. FRCP 14.

Question 22

When can a party amend a pleading?

Answer 22

A party may amend its pleading once as a matter of course no later than:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.

FRCP 15.

Question 23

What happens if a party objects at trial that the evidence is not within the scope of the issues raised in the pleadings?

Answer 23

the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.

FRCP 15.

Question 24

When must a federal judge issue a scheduling order under FRCP 16?

Answer 24

• after receiving the parties’ report under Rule 26(f); or
• after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference.

The judge must issue the scheduling order as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appeared.

FRCP 16

Question 25

In what circumstances can plaintiffs join in a single action?

Answer 25

Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the action.

FRCP 20

Question 26

In what circumstances can defendants be joined in one action as defendants?

Answer 26

Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

FRCP 20

Question 27

When can a court add or drop a party or sever claims against a party?

Answer 27

On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party. FRCP 21.

Question 28

When must a party make its initial disclosures under Rule 26?

Answer 28

At or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order. FRCP 26(C).

Question 29

What’s the scope of discovery under the FRCP?

Answer 29

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any part’s claim or defense and proportional to the needs of the case. FRCP 26(b).

Question 30

What factors are considered in evaluating if a discovery request is proportional to the needs of the case?

Answer 30

• the importance of the issues at stake in the action;
• the amount in controversy;
• the parties’ relative access to relevant information;
• the parties’ resources;
• the importance of discovery in resolving the issues; and
• whether the burden of expense of the proposed discovery outweighs its likely benefit.

FRCP 26(b)

Question 31

Does information have to be admissible to be discoverable?

Answer 31

No. FRCP 26(b)

Question 32

What’s the work product rule set forth in Rule 26?

Answer 32

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). FRCP 26(b)(3).

Question 33

What are the exceptions to the work product rule set forth in Rule 26?

Answer 33

But subject to Rule 26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

FRCP 26(b)(3)

Question 34

If the court orders the production of materials that normally would be protected by the work product rule, what must always be protected from disclosure?

Answer 34

If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation. FRCP 26(b)(3)(B)

Question 35

Under the FRCP, can a party depose an expert witness?

Answer 35

Yes - see FRCP 26(b)(4) - “A party may depose any person who has been identified as an expert whose opinions may be presented at trial.”

Question 36

If an expert witness is required to provide a report under the FRCP and a party wishes to depose the expert, when must the deposition take place?

Answer 36

If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided. FRCP 26(b)(4)

Question 37

Does a party have to disclose an expert witness’s draft reports?

Answer 37

Generally, no. The work product rule set forth in FRCP 26 protects drafts of expert reports, regardless of the form in which the draft is recorded. FRCP 26(b)(4).

Question 38

Are communications between an attorney and his/her expert witness discoverable?

Answer 38

Generally, no.

Communications between the party’s attorney and an expert witness are generally protected by the work product rule, regardless of the form of the communications. FRCP 26(3)(C).

Question 39

In what circumstances can the opposing party obtain discovery of communications between an attorney and his/her expert witness?

Answer 39

Communications between an attorney and his/her expert witness can be discovered if they:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

FRCP 26(b)(3)(C)

Question 40

Can a party obtain discovery of facts and/or opinions held by an opposing party’s expert witness if the expert witness has been retained or specially employed by the opposing party in anticipation of litigation or to prepare for trial but who is not expected to be called as a witness at trial?

Answer 40

Generally, no. FRCP(b)(4)(D)

Question 41

In what limited circumstances can a party obtain discovery of facts and/or opinions held by an opposing party’s expert witness who is retained in anticipation of litigation or to prepare for trial but who is not expected to be called as a witness at trial?

Answer 41

A party may do so only:

(i) as provided in Rule 35(b); or

(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

FRCP 26(b)(3)(D)