Chapter 8 The Federal Rules of Civil Procedure

Chapter 8 The Federal Rules of Civil Procedure

1. Commencement of the Action

Rule 3 provides that an action is commenced by filing a complaint with the court. Federal courts may adopt local rules to permit filing by fax or other electronic meas. Filing a complaint before the statute of limitations has-run will satisfy the statute of limitations in federal question cases and in diversity cases where the state rule is similar. However, the Supreme Court has held that a state rule that an action is commenced for purpose of the statute of limitation only upon service of process must be applied in diversity cases.

2. Extension of Time Periods

Rule 6(b) gives the district court power to extend the period within which actions under the Federal Rules must be performed. However, certain time periods may never be extended. The following motions must be filed,with no extensions,within 10 days after entry of judgment; renewed motion for judgment as a matter of law,motion to amend judgment,motion for new tri­al, motion to amend findings of fact in nonjury case,and grant of new trial on court's initiative.

3. Interlocutory Injunctions

An interlocutory injunction is an equitable remedy by which a person is ordered to act or to refrain from acting in a specified manner. Interlocutory injunctions are granted to maintain the status quo until a trial on the merits may be held.

1. Preliminary Injunction

A preliminary injunction is sought by a party prior to a trial on the merits of the com­plaint. A preliminary injunction may not be issued without notice to the adverse party.

2. Temporary Restraining Order

A temporary restraining order is granted by a court when it is necessary to prevent irrepa­rable injury to a party, and the injury will result before a preliminary injunction hearing can be held.

4. Pleadings

1. Complaint

1. A short statement of the grounds for the court’s jurisdiction;
2. A short statement of the claim showing that the pleader is entitled to relief;and
3. A demand for judgment for relief,which may be in the alternative-

2. Answer

1. Content                                            ,

An answer must contain denials or admissions and any affirmative defenses.

2. Time

If no Rule 12 motion is made,a defendant who was formally served with a summons and complaint was mailed and who waives formal service must answer within 60 days after the re­quest for waiver was mailed to her. If a Rule 12 motion is made and the court does not fix an­other time,the responsive pleading is to be served within 10 days of the court’s denial or post­ponement of the motion. The answer is due within 10 days of service of a more definite state­ment if the court grants a Rule 12(e) motion.

3. Counterclaims

Claims that the defendant may have against the plaintiff may be pleaded in the answer as counterclaims. If a counterclaim arises out of the same transaction or occurrence as one of the plaintiffs claims,it is a compulsory counterclaim and must be pleaded or it will be barred. Any other counterclaim is permissive and may be asserted even though there is no connection at all between it and the plaintiffs claim.

3. Inconsistent Claims or Defense

A party may set out as many alternative claims or defenses as he may have regardless of consistency.

5. Joinder

1. Joinder of Parties

1. Capacity

An individual’s capacity to sue or be sued is determined by the law of her domicile; the ca­pacity of an organization is determined by the law of the state where the federal court sits, except that a partnership or unincorporated association always has capacity where a substantive federal right is asserted by or against it.

2. Compulsory Joinder—Persons Needed for Just Adjudication

Under Rule 19, a party is" needed for just adjudication" if .-complete relief cannot be given to existing parties in her absence; or disposition in his absence may impair his ability to protect his interest in the controversy; or his absence would expose existing parities to a substantial risk of double or inconsistent obligations.

2. Joinder of Claims

The policy of the Federal Rules is to permit the adjudication of all claims between the par­ties and claims arising out of a single transaction. A plaintiff can join any number and type of claims against a defendant; where multiple plaintiffs or multiple defendants are involved, it is essential only that at least one of the claims arise out of a transaction in which all were in­volved.

6. Duty of Disclosure;Discovery

1. Disclosure Requirements

Rule 26 requires parties to disclose certain information to other parties without waiting for a discovery request. However,Rule 26 also has provisions allowing stipulation of the parties or court order to modify some disclosure requirements.

2. Scope of Disclosure and Discovery

Discovery may be of any matter not privileged that is" relevant to the claim or defense of any party," including the identity of persons having knowledge of relevant facts. As long as the information sought is reasonably calculated to lead to the discovery of admissible evidence on a claim or defense in the case,it is not required that the information itself be admissible at trial.

3. Use of Depositions at Trial or Hearing

Subject to the rules of evidence, a deposition may be used against any party who was pres­ent at the deposition or had notice of it;

1. To impeach the testimony of the deponent as a witness;
2. For      any purpose if the court finds that the deponent, or unable to testify because of age,sickness,etc. ;or
3. For any purpose if the deponent is an adverse party.

VD. Trial

1. Jury Trial Problems

Rule 38 requires a party who desires a jury trial to file a written demand with the court and serve it on the parties. Failure to make such a demand within 10 days after the filing of the pleading in which the jury - triable issue arose constitutes a waiver by that party of any right to trial by jury. A court may,within its discretion,order a trial by jury if the plaintiffs waiver was not intentional. In the absence of compelling reasons to the contrary,a court should grant relief from waiver if the issue is one normally tried by a jury.

2. Consolidation and Separate Trials

Rule 42 (a) allows the court to consolidate actions then before it when the actions have a common question of law or fact. Rule 42 (b) allows the court to order separate trials of any claim, cross claim, counterclaim, or other issues when such separation will foster judicial econo- my.

3. Voluntary Dismissal by Plaintiff

A plaintiff may dismiss his action without prejudice as a matter of right only before the de­fendant files as answer or a summary judgment motion, or by stipulation of all parties. Other­wise , a dismissal without prejudice can be taken only with leave of the court.

4. Motion for Judgment as a Matter of Law

Historically, a judge could direct a particular verdict whenever the evidence—viewed in the light most favorable to the party against whom the verdict was direct and without considering the credibility of witness—was such that reasonable persons could come to only one conclusion.

5. Renewed Motion for Judgment as a Matter of Law

Historically, a party against whom judgment was entered could move for JNOV if the judg­ment was based upon a verdict that reasonable persons could not have reached and if the mov­ing party had sought a directed verdict at the close of all the evidence. Now, the motion for JNOV is called a renewed motion for judgment as a matter of law. It must be filed no later than

10. days after entry of judgment. The moving party must have moved for judgment as a matter of law at the close of all evidence to preserve the right to have the court consider a renewed motion for judgment as a matter of law. The standard is the same as for the motion for judgment as a matter of law.

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Vffl. Final Judgment and Appellate Review

1. Judgment

1. Relief That May Be Given

Except in default cases,the court is not limited to the demand for relief in the pleadings and may give any relief that is appropriate cased on the evidence. Thus,damages may exceed

the plaintiffs demand and an injunction may be entered although not requested. Interest on a money judgment is awarded at the rate provided under state law from the date of judgment.

2. Judgment on Multiple Claims or Parties

When multiple claims or parties are involved in an action,the court may enter final judg­ment as to fewer than all of the claims or parties only upon an express determination that there is no just reason for delay,and an express direction for the entry of judgment. Unless the trial judge makes such an express determination, the order determining the merits of fewer than all of the claims or dismissing fewer than all of the parties is not a final judgment and is not appeal- able. This is in accord with the traditional policy against piecemeal appeals.

2. Time for Appeals

Under Rule 3 and 4 of the Federal Rules of Appeal Procedure, an appeal maybe taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment ap­pealed from. However,if a timely renewed motion for judgment as a matter of law or motion for new trial is made,or if a motion to set aside or amend the judgment is made within 10 days of judgment,the running of the 30 days is terminated.

3. Re viewable Order

Generally,only final orders are reviewable. A final order is one that disposes of the whole case on its merits,by rending final judgment not only as to parties but as to all causes of action involved.

4. Stay Pending Appeal

1. Execution

No execution on judgments is allowed for 10 days after entry except injunctions or receiv­erships, which are not held up unless otherwise ordered by a court.

2. Enforceability

Judgments are enforceable during pendency of post - trial motions unless a court otherwise orders in its discretion and on such conditions for the security of the adverse party as are prop­er.

3. Bond

A supersedes bond is required in sufficient size to satisfy the judgment, costs, interest, and damages for delay, should the appeal be dismissed or affirmed. Upon filing such a bond, an ap­pellant has a stay pending appeal—unless the order was for an injunction or receivership.

5. Supreme Court Jurisdiction

The Supreme Court has direct appeal jurisdiction from any order granting or denying an in­junction in any proceeding required to be heard by a three - judge court.

1. Court of Appeals Cases
2. Cases in the courts of appeals may be reviewed by the Supreme Court by certiorari or by certification.Cases from Highest State Court

Final judgments rendered by the highest court of a state in which decision may be re­

viewed by the Supreme Court by certiorari in the following circumstances:

1. Where the validity of a treaty or federal statute is drawn into question; or
2. Where the validity of a state statue is drawn into question on the ground that it is repug­nant to the federal Constitution or to a treaty or federal statute; or
3. Where any title, right, privilege, or immunity is claimed under the federal Constitution or treaty or federal statute.