Commencement, Service

1. FRCP 1: Scope of FRCP’s

a. These rules govern the procedure in ALL civil actions
2. FRCP 3: Commencing an Action
a. A civil action is commenced by filing a complaint with the court
3. FRCP 4: Summons and Service; Waiver of Service (60 days)
a. a: Contents
i. name the court and parties, directed to the D, name and address of P’s attorney, notify of
default judgment if no response, be signed by clerk, bear the court’s seal
b. b: Issuance
i. clerk must sign, seal, and issue the summons to the P for service to D; must be one
summons for each D to be served
c. c: Service
i. summons MUST BE served with the complaint within 120 days after filing with court
ii. person who is at least 18 and NOT A PARTY may serve
d. d: waiver of service (60 days to respond)
i. the notice and request must be : in writing and addressed, name the court where filed,
complaint copy, 2 waiver forms, prepaid means of returning form, inform of
consequences of not waiving, date request is sent, 30 days (or 60 if out of US) to return
the waiver
ii. proof of service is NOT required
e. e-j: individuals, corporations, governments, foreign service
• Rio v Rio: proper forms of service; court method ordered was it sufficient?; serving a
corporation, partnership or association
f. l: Proving Service
i. proof of service MUST be made to the court
g. m: Time Limit of Service
i. D must be served within 120 days of filing, or court dismiss action without prejudice
against the D
ii. IF P shows good cause for the failure, the court MUST extend the time for service (RIO
CASE)
iii. If service is ineffective; D can move to dismiss
4. FRCP 5: Service of pleadings and other papers
a. B: methods of service
i. If party represented by an attorney service MUST be made to the attorney UNLESS court
orders service to party
ii. Paper served by: 1) handing to person 2) leaving it at office with clerk or someone in
charge, at person’s dwelling or usual place of abode with someone of suitable age and
discretion, 3) mail to last known address(complete upon mailing) 4) leaving with court
 clerk if no known address 5) by email if consented by person in writing- not effective if
did not reach person 6) deliver by any other means person consented to in writing

Pleadings and Motions(Pleadings=complaint, answer, and amendments)

5. FRCP 7: Pleadings allowed

a. Complaint
b. Answer to complaint
c. Answer to counterclaim
d. Answer to cross-claim
e. Third party complaint
f. Answer to a 3rd party complaint
g. If court ordered, a reply to an answer
h. FRCP 7(b): request for court order must be made by motion
i. Written, state with particularity the grounds for seeking the order AND relief sought
6. FRCP 8: General rules of pleading
a. 8(a): Complaint must contain:
i. Short and plain statement of the grounds for court’s jurisdiction
ii. Short and plan statement of the claim showing that pleader is entitled to relief
iii. Demand for the relief sought
• Iqbal: 1) take out the conclusory/mere legal conclusions from the allegations 2)
judge looks at the rest of the allegations in a whole (assumed to be true) and to they
plausibly suggest an entitlement
• Swierkuwicz: notice pleading standard, in complaint don’t have to state exact tort
you’re suing under
o HOWEVER: rule for fraud and or mistake (FRCP 9) that require a
heightened pleading standard, 9(b): a party must state with particularity the
circumstances constituting fraud or mistake
• Can’t have the allegation stated as a conclusion, bare assertions will NOT suffice
(ex: She stole the purse)
b. 8(b): Defenses, admission, denials
i. (1) Must state in short and plain terms its defenses(RACICK) AND admit or deny the
allegations asserted
1. Milton: can’t do catch all phrase: “any not admitted or denied is hereby denied.”;
courts don’t like this, want you to specifically respond to EACH allegation;
ordered D to amend its answer
ii. (2) denial must fairly respond to the substance of the allegation
iii. (3) a party that intends in good faith to deny all allegations may do so by a general denial
iv. (4) can deny only part of an allegation; must admit the true part and deny the rest
 v. (5) if party lacks knowledge or info sufficient to form a belief on the truth of the
allegation, must state effective as denial
vi. (6) if allegation gets no response the default judgment FRCP 55
c. 8(c): Affirmative defenses
i. Accord and satisfaction; Arbitration and award
ii. Assumption of risk; Contributory negligence
iii. Duress; Estoppel; Failure of consideration
iv. Fraud; Illegality; Injury by fellow servant
v. Laches; License; Payment; Release; Res judicata
vi. Statute of frauds; Statute of limitations; Waiver
1. Racick: Plausibility standard applies to raising affirmative defenses; have to state
why would be granted; fair to require same standards for D as for P in their
pleadings
d. 8(d): Pleadings to be concise and direct
i. no technical form is required
e. 8(e): court to construe pleadings so as to do justice
7. FRCP 9: Pleading special matters
a. 9(b): Fraud/Mistake: In alleging fraud or mistake, 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.
8. FRCP 11: Signing, representations, sanctions (non-discovery papers, motions, pleadings)
a. Rule 11(a): every pleading, written motion, or other paper must be signed by at least one
attorney
b. Rule 11(b): “by presenting to the court a pleading, written motion, or other paper” party is
certifying it is free of problems. (frivolous claims), to best of their knowledge formed on
reasonable inquiry
i. 11(b)(1): Improper purpose (frivolous/malicious conduct)
ii. 11(b)(2): Not warranted by law
iii. 11(b)(3): Unsupported factual contentions
1. Patsy Case: court did sua sponte(on own initiative) request to submit factual
support, attorney’s disregarded overwhelming evidence that statements in client’s
affidavits were untrue; no opportunity to amend when court raises motion;
iv. 11(b)(4): Unwarranted denials
c. Rule 11(c): Sanctions
i. When 11(b) has been violated, motion can be brought by court or party involved=
1. Court: subjective good faith standard
2. Parties: must be made separately from any other motion AND describe the
specific conduct that allegedly violates 11(b); safe harbor: 21 days to
appropriately amend or withdraw document before filed to court; apply objective
reasonableness standard
 ii. Sanction MUST be limited to what suffices to deter repetition of the conduct
iii. Limitations on monetary sanctions, not normally used against represented party for
violation of 11(b)(2)
iv. Order imposing a sanction must describe the sanctioned conduct AND explain basis for it
d. Rule 11(d): discovery papers are excluded
9. FRCP 12: Defenses and objections (allows for enforcement of FRCP 8)
a. Rule 12(a): Time to respond to a complaint (21 days) or 60 days if waived service, or 90 days
if outside US
i. Party must serve an answer to a counterclaim or cross claim within 21 days after being
served; also 21 days after being served with an order to reply
ii. If 12(b)/12(e)=motion for a more definite statement; motion raised and court denies the
motion response pleading must be served in 14 days
b. Rule 12(b): How to present defenses:
i. 1: Lack of subject-matter jurisdiction
ii. 2: Lack of personal jurisdiction
iii. 3: improper venue
iv. 4: insufficient process
v. 5: insufficient service of process
vi. 6: failure to state a claim
vii. 7: failure to join a party under Rule 19
1. 2-5: if fail to raise in the initial response then defense is WAIVED (answer or pre-
answer)
c. Rule 12(c): Motion for judgment on pleadings
i. What a 12(b)(6) becomes after the answer, before trial but not summary judgment; still
just looks whether there is a claim for relief; court ONLY looks at whether complaint
itself states a legally sufficient claim
d. Rule 12(d): FRCP 12(b)(6) or 12(c) motion that relies on matters outside pleadings will be
converted to FRCP 56 motion=summary judgment= P meets minimal burden to plead the
elements but cannot PROVE one or more of those elements, no disputed issue of material fact
e. Rule 12(e): Motion for a more definite statement
i. If court grants this motion response pleading must be served in 14 days
f. Rule 12(f): Motion to strike: court may strike from pleading on its own OR on motion by a
party=within 21 days after being served with the pleading
g. Rule 12(g): joining motions
i. Motion under this rule may be joined with any other motion
h. Rule 12(h): except for (b)(1), (b)(6), and (b)(7), defenses not raised in motion or pleading
are waived
10. FRCP 15: Amended and Supplemental Pleadings
a. Rule 15(a)(1): 21 days from service
b. Rule 15(a)(2): The court should freely give leave when justice so requires
 i. Williams v. Citigroup: FOMAN FACTORS for when NOT to allow a leave to amend=
1) undue delay 2) bad faith 3) dilatory motive by movant’s part 4) repeated failure to
cure deficiencies by previous amendment 5) prejudice to opposing party 6) futility of
amendment
c. Rule 15(a)(3): Response is required within 14 days of service of amended pleading or time
remaining to respond to original pleading, whichever is longer
d. Rule 15(b): Amendments during and after trial
i. If AT TRIAL a party objects that evidence is NOT within the pleading, the court may
permit the pleadings to be amended
ii. When an issue NOT raised by the pleadings is tried by the parties’ express or implied
consent, it MUST BE TREATED in all respects as if raised in the pleadings
1. Ex: Emanual book= pleadings raised strict product liability, brought evidence of
negligence in product design, D didn’t object(implied consent) and court allowed
relief for negligence
e. Rule 15(c): Relation back of amended pleading to date of original pleading
i. Apply ONLY when claim would be barred by statute of limitations
ii. Add claim or defense: arose out of the conduct, transaction, or occurrence set out in the
original pleading (Tran v. Alphonse Hotel)
iii. Add party: 1) arise out of original pleading conduct, 2) received such notice of the action
within 120 days from filing 3) knew or should have known that the action would have
been brought against them BUT FOR a mistake concerning the proper party’s identity
11. FRCP 16: Pretrial conferences, scheduling,
a. 16(a): purposes of pretrial conferences; court may order multiple pretrial conferences
b. 16(b): court must issue scheduling order, setting dates for discovery, conferences
i. judge MUST issue a scheduling order, after receiving parties’ 26(f) report OR after
consulting at a scheduling conference
1. Must issue as soon as practicable, 120 days after D has been served or 90 days
after any D has appeared
ii. (3)(A): scheduling order MUST limit the time to join other parties, amend the pleadings,
complete discovery, and file motions
iii. schedule may be modified ONLY for good cause and with the judge’s consent

Disclosures and Discovery

12. FRCP 26 Duty to disclose, General provisions of discovery

a. Rule 26(a)(1): Initial disclosures (within 14 days of 26(f) conference)
i. Name, contact info of anyone with potential information, and general synopsis of info
ii. Copy (or description) or all relevant documents
iii. Calculation of damages (including pertinent insurance info)
b. Rule 26(b)(1): Parties may obtain discovery regarding any
i. Non-privileged matter
 ii. that is relevant to any party’s claim or defense (court may order discovery of any
matter relevant to the subject matter in the action)
1. is not limited to information that would be admissible at trial, just relevant and
appears to be reasonably calculated
iii. and is subject to proportionality limitations from Rule 26(b)(2)(c)
c. Rule 26(b)(2)(b): e-discovery: A party need not provide discovery of ESI from sources that the
party identifies as not reasonably accessible because of undue burden or cost. (cost v benefit
based on accessibility and cost)
d. Rule 26(b)(2)(c): Proportionality factors: On motion, the party may be compelled to do so, if
the P can show good cause: (Includes privacy/ confidentiality issues) Zubulake cost shifting
factors:
i. Specificity of request
ii. Qty of information available from other sources
iii. Failure to produce relevant but no longer available info
iv. Likelihood of finding info unavailable elsewhere
v. Importance and usefulness of other information
vi. Importance of issues at stake
vii. Parties’ resources
e. Rule 26(b)(3): Work product protection
i. Protection for documents and tangible things prepared in anticipation of litigation or
for trial
ii. Exception for matter that is otherwise discoverable, substantial need or undue
hardship
iii. Stronger protection for mental impressions. 26(b)(3)(B).
f. Attorney-Client Privilege (Elements):
i. Asserted holder of the privilege is or sought to become a client
ii. The person to whom the communication was made is a lawyer
iii. The communication relates to a fact of which the attorney was informed a) by his
client b) without the presence of strangers c) for the purpose of securing a legal
opinion or advice AND
iv. The privilege has been a) claimed AND b) not waived by the client
g. Rule 26(b)(4)(a): permits depositions of testifying experts
h. Rule 26(b)(4)(b): drafts of required testifying expert reports are work product
i. Rule 26(b)(4)(c): attorney communications with testifying experts protected except for
compensation, supplied facts, assumptions
j. Rule 26(b)(4)(d): non-testifying expert materials protected from disclosure
i. Prepared in anticipation for litigation
ii. Like work product
k. Rule 26(b)(5)(A): Privilege log: items protected, nature of privilege invoked
l. Rule 25(b)(5)(B): Inadvertent disclosures: Rescind items offered in discovery, if privilege exists
 m. Rule 26(c)(1): Protective orders may be granted to protect party or other person from
annoyance, embarrassment, oppression, or undue burden or expense.
i. Court can make a protective order eve if meet 26(b)(1) standard
n. Rule 26(c)(1)(A-H): Protective orders may forbid discovery, specify terms, prescribe other
methods, seal answers and responses.
o. Rule 26(e): supplementation of required disclosures and discovery responses
p. Rule 26(f)(1): Discovery planning conference (21 days before scheduling conference)
i. Discovery Plan due 14 days after discovery planning conference
q. Rule 26(g): Signing disclosures: Parallels FRCPs 11, 37 in discovery context
13. FRCP 30: Oral depositions
a. 30(a): depositions taken without leave and with leave of court
b. 30(b): notice to other parties and other requirements; request to produce documents at deposition
c. 30(c): permitted procedures during deposition (objections don’t stop deposition)
d. 30(d): 7-hour limit without leave of court; sanctions for impeding deposition; motions to
terminate or limit depositions
e. 30(e): deponent’s right to review and correct deposition transcript (30 days)
f. 30(f): treatment of record of deposition
g. 30(g): sanctions for failure to attend deposition or serve subpoena
14. FRCP 31: written depositions
a. 31(a): depositions taken without leave and with leave of court
b. 31(b): delivery of questions and notice to officer who will take deposition
c. 31(c): notice to all parties required when deposition completed and filed
15. FRCP 33: Interrogatories
a. 33(a): interrogatories limited to 25 without leave of court; may ask for opinions
b. 33(b): requirement of answers to all interrogatories within 30 days; objections permitted in
responses
c. 33(c): interrogatory responses may be used as evidence
d. 33(d): production of business records may be permitted response
16. FRCP 34: requests for production
a. 34(a): requests for production of documents, ESI, things, or for entry onto land
b. 34(b): requests must describe things requested with reasonable particularity; responses required
within 30 days unless time altered; objections permitted in responses; special procedures for ESI
c. 34(c): nonparties may be compelled to produce documents and things (FRCP 45)
17. FRCP 35: physical and mental exams
a. 35(a): court may order examination or production of a party or person under control of a party;
order will issue only on requesting party’s motion
b. 35(b): if requested, party who moved for exam must deliver report to opposing party; may ask
opposing party for any earlier exam reports of same person
18. FRCP 36: requests for admission
 a. 36(a): matter included in RFA admitted if not otherwise responded to within 30 days (or other
time stipulated by court); denials must fairly respond to substance of requests; responses may
include objections
b. 36(b): court may, on motion, permit admission to be withdrawn; admissions bind admitting party
only in the proceeding in which they are made
19. Rule 37: motions to compel, discovery sanctions
a. Rule 37(a): motions to compel disclosures, discovery responses permitted; consequences if
motions are granted or denied may include sanctions
b. Rule 37(b): consequences of failure to comply with a court order
c. Rule 37(c): consequences of failure to disclose, supplement, admit
d. Rule 37(d): consequences of failure to respond to discovery requests
e. Rule 37(e): consequences of failure to provide ESI: no sanctions permitted for failure to provide
ESI if failure results from routine, good-faith operation of document retention
f. Rule 37(f): sanctions permitted for failure to participate in framing discovery plan

Trials

20. FRCP 38: Right to Jury trial; demand

a. 38(a): Right to jury trial preserved (7th amendment or statute)
i. “in suits at common law, where the value in controversy shall exceed $20 the right of
trial by jury shall be preserved”
ii. no juries in the equity system
b. Generally: (Terry)
i. Remedy factor normally carries more weight in decision
ii. Requests for relief, damages, etc are legal remedies (jury trial)
1. Contract, tort, nuisance, value of stolen property (trover), possession of
stolen property (replevin), eviction
2. Most money remedies are LEGAL
iii. Requests for court procedural issues or orders are equitable (bench trial)
1. Specific performance, reformation, rescission, injunction
c. “Functional considerations” (Markman)
i. Is issue one of fact or law? (jury finds facts, judge finds legal issues)
ii. Does judge or jury have greater competence to decide the issue?
iii. How important is uniformity of decision?
d. 38(b): Demand a jury trial within 14 days of the last service of pleading(keep in mind what
goes into a pleading), file in accordance FRCP 5(d)
e. 38(d): Right waived if not properly serve and filed
21. FRCP 39: Trial by Jury or by the Court
a. 39(a): if jury trial is demanded, action will be tried by jury unless parties stipulate otherwise, or
court finds no right to jury trial on some issues
b. 39(b): court may order jury trial even if demand not proper
 i. can’t insist as a constitutional right
c. 39(c): court may use an advisory jury as it sees fit
i. (2): court may with parties’ consent, try any issue by a jury whose verdict has the same
effect as if a jury trial had been a matter of right. EXCEPTION: against US or fed statute
provides for a NONJURY trial
d. Markman: just because action meant for a jury does NOT mean that each individual issue within
a jury trial is also meant for a jury
e. Beacon Theatres: if P seeks both legal damages and equitable relief court CANNOT decided
equitable claims first, separate the claims and jury decides theirs FIRST
22. FRCP 40: Scheduling Cases for Trial
a. Court must provide by rule for scheduling trials, court give priority to actions entitled to priority
by fed statute
23. FRCP 45: Subpoenas for non-parties(for discovery by deposition or production)
a. 45(a): required contents of subpoenas; may include commands to attend deposition or produce
b. 45(b): procedure for serving subpoenas
c. 45(c): party responsible for subpoena must protect against undue burden on subpoenaed person;
issuing court may on motion quash or modify subpoena for listed reasons
d. 45(d): obligations of person responding to subpoena with respect to production of documents and
ESI, claims of privilege or protection
e. 45(e): failure to obey subpoena may result in contempt holding
24. FRCP 47. Selecting Jurors
a. 47(a): permits examination of prospective jurors by parties, attorneys or court
b. 47(b): peremptory challenges permitted as provided by 28 U.S.C. §1870; get 3
i. Peremptory challenge: opportunity to strike without explanation or cause; don’t need to
give reason at this time (Might later if unjust cause for the challenge
EDMONSON=racial)
c. 47(c): court permitted to excuse juror for good cause during trial or deliberation
d. Mechanics:
i. Summons generate venire panel=panel of prospective jurors
ii. Voir Dire used to select jury members (3 kinds)
1. Automatic Disqualification: includes things such as: illiteracy, disability, and
serious criminal record; No limit for this
2. Dismissal for cause: members of panel who show themselves incapable of
performing their fact-finding tasks properly
3. Peremptory challenge: get ONLY 3
25. FRCP 48: Number of jurors
a. (a): 6-12 jurors, each juror MUST participate in the verdict
b. (b): unless otherwise stipulated, decision must be unanimous
 c. (c): after a verdict before jurors are discharged a party, or the court, may request a poll of
individual jurors; IF poll reveals lack of unanimity or lack of assent the court MAY direct the
jury to deliberate further or may order a new trial
26. FRCP 49: Special verdict, general verdict and questions
a. (a): Court may inquire about a special verdict in the form of a special written finding on each
issue of fact
b. (b): court may submit to the jury forms for a general verdict with written questions on one or
more issues of fact that the jury must decide
c. (b)(2): When the verdict is consistent with special questions, the court must accept
d. (b)(3),(4): When the verdict is inconsistent with special question, the court may:
i. (a): approve judgment according to answers
ii. (b): direct the jury to further consider its answers and verdict
iii. (c): order a new trial
27. FRCP 50: Judgment as a matter of law/ renewed JMOL
a. 50(a)(1): standard for granting judgment as a matter of law “if a party has been fully heard on
an issue and the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue”, the court may:
i. Resolve the issue against the party; and
ii. Grant a motion for JMOL against the party on a claim or defense that, under the
controlling law, can be maintained or defeated only with a favorable finding on that issue
1. Either motion will be granted if the OPPONENT’s evidence is SO WEAK that no
reasonable jury could have reached a verdict for him
2. Seeking to have the case taken from the jury
3. Federal standard: consider the non-moving party’s evidence in its most
favorable light BUT also consider any evidence put forward by the moving party
that is not impeached, or contradicted by the opposing party
4. Judge can only grant judgment as a matter of law if non-moving party has failed
to meet their burden of PRODUCTION, not produced enough credible evidence
on an element
5. Different from summary judgment: court can direct a verdict even though some
evidence supports the opposite position
b. 50(a) (2): A motion for JMOL may be made at any time before the case is submitted to the jury.
The motion must specify the judgment sought and the law and facts that entitle the movant to the
judgment
c. 50(b): No later than 28 days after the entry of judgment the movant may file a renewed
motion for JMOL and may include an alternative or joint request for a new trial.
i. Judge may allow judgment, order new trial, or direct entry of judgment
ii. Cannot renew JMOL if they have not already made a motion for JMOL during trial on
the same material fact
 d. 50(c): requirements for court’s ruling and appellate procedure when party files renewed motion
for JMOL together with motion for new trial
i. if the court grants a renewed motion for judgment as a matter of law it must also
conditionally rule on any motion for a new trial; court must state grounds for
conditionally granting or denying the motion
e. 50(d): time limit for filing new trial motion (within 28 days of judgment)
f. 50(e): permitted responses by appellate court if renewed motion for JMOL is denied
28. FRCP 51: Jury instructions
a. 51(a): when jury instructions may be requested by parties (before close of evidence)
b. 51(b): court must inform parties of proposed jury instructions, give parties opportunity to object
c. 51(c): timing and procedures for objecting to jury instructions
d. 51(d)(1): Assigning error for instructions
e. 51(d)(2): Exception for instructions involving “plain error”
i. Obviousness of the mistake
ii. Importance of the error
iii. Cost of correcting error
iv. Impact on nonparties
29. FRCP 52: Bench trials
a. 52(a): in bench trial, court must find facts and state conclusions of law; court need not make such
findings and conclusions in ruling on any motion, including FRCP 12 or 56 motions
b. 52(b): court may amend or make additional findings on motion (analogous to renewed JMOL)
c. 52(c): court may enter judgment on partial findings on motion (analogous to JMOL)
d. judge may consider the credibility of the witnesses, allows the judge to determine whether the P
has carried her burden of proof
30. FRCP 53: special masters
a. 53(a): court may appoint master under specified circumstances
b. 53(b): requirements for appointing master, required contents of order of appointment
c. 53(c): master may regulate proceedings, take evidence, impose FRCP 37 or 45 sanctions
d. 53(d): requirements for orders issued by masters
e. 53(e): requirements for reports issued by masters
f. 53(f): court may act on master’s report after parties have notice and opportunity to be heard
g. 53(g): compensation to masters
i. used somewhat often in certain types of litigation, used when litigation is complex, either
case is complex or the law is really complex

Judgment

31. FRCP 56: Summary Judgment

a. 56(a): SJ standard: The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law. (either party may request)(Celotex standard)
 i. apply 50(a) standard also: court finds that a reasonable jury WOULD NOT have a
legally sufficient evidentiary basis to find for the party on that issue
b. 56(b): timing (may be requested up until 30 days after discovery period)
c. 56(c): procedures for moving for summary judgment, supporting motion, opposing motion, and
deciding motion
i. (A): citing to a particular set of facts/material in the record
ii. (B): showing that the materials cited do NOT establish the absence or presence of a
genuine dispute, or that an adverse party CANNOT produce admissible evidence to
support the fact
iii. if a party moving for SJ does NOT have the burden of persuasion(normally D)
movant need only point out non-movant’s inability to meet burden (CELOTEX)
iv. P if movant would have to show that they had so much/overwhelming amount of
evidence that no jury would see a reason to not rule for P
d. 56(d): court’s options when nonmovant shows it cannot present facts essential to opposition
i. can defer considering the motion, allow time to obtain discovery or affidavits, or issue
any other appropriate order
e. 56(e): court’s options when party fails to support or address fact properly in connection with
summary judgment motion or opposition
f. 56(f): court may grant summary judgment for nonmovant, on grounds not raised by party, or sua
sponte
g. 56(g): court may grant partial summary judgment on particular facts that are not in dispute
h. 56(h): sanctions authorized for affidavits or declarations submitted in bad faith
i. ONLY appropriate if there is no genuine dispute as to any material fact to be resolved
by the jury
ii. Should go to a jury if reasonable people could draw varying opinions/decisions on the
information provided
iii. If P has NO EVIDENCE to prove a necessary element of the case before the trial “no
genuine dispute” exists and summary judgment is appropriate
iv. Burden of Production (operates mainly in summary judgment)
1. Plaintiff
a. Non-movant party: create a genuine issue of material fact, must counter
movant’s evidence directly, have to show that jury could find for that
element
b. Movant: show absence of genuine issue on any material fact, evidence is
SO overwhelming for the P that there is no need for a trial; over meet the
burden of persuasion plus more
2. Defendant
a. Movant: show absence of genuine issue on any material fact; show that
non-movant has failed to make a sufficient showing on at least one
essential element which she has burden of proof for
32. FRCP 59: New trial: Altering or amending a judgment
a. (a)(1): court may, on motion, grant a new trial
b. (a)(2): after a nonjury trial, court may open the judgment to allow further testimony, amend
statements of fact and conclusions of law or make new ones, and direct the entry of a new
judgment
i. BENCH TRIALS
c. (b): Motion must be filed within 28 days after entry of judgment
d. (c): When a motion is based on affidavits, they must be filed with the motion. The opposing
party has 14 days after being served to file opposing affidavits.
e. (d): Court may file for a new trial on the court’s own initiative within 28 days
f. (e): Motion to alter or amend must be done within 28 days of judgment
g. Grounds: (more lenient standard of review than JMOL)
i. Verdict against the weight of evidence
ii. Excessive damages
iii. Trial unfair to moving party (new evidence, jury/judge/lawyer misconduct)
iv. Substantial error in admission or rejection of evidence or jury instructions
h. 59(a)(1)(B): Motion for new bench trial
i. no requirement for a motion during the trial, such as with renewed JMOL
33. FRCP 60: Relief from judgment
a. 60(a): Corrections based on clerical mistakes (on motion or sua sponte)
b. 60(b): Relief from judgment based on:
i. 60(b)(1): mistake, surprise, or excusable neglect
1. Whether non-defaulting party will be prejudiced
2. Whether defaulting party has a meritorious defense
3. Whether culpable conduct of the defaulting party let to default
ii. 60(b)(2): newly discovered evidence
1. Evidence has been discovered since trial
2. Evidence could not have been discovered earlier
3. Evidence is not merely cumulative or impeaching
4. Evidence would probably change the result
iii. 60(b)(3): fraud
iv. 60(b)(4): judgment is void
v. 60(b)(5): judgment has been satisfied, released, or discharged; based on an earlier
judgment that has been reversed of vacated (possibly unconstitutional); or applying it is
no longer equitable
vi. 60(b)(6): any other reason that justifies relief
1. Ackermann: not just for unfair outcome, has to be extraordinary circumstances,
very fact specific analysis
c. 60(c): party may move for relief under first three grounds listed in 60(c) no more than 1 year
after entry of judgment; motion for relief on other grounds must be made within reasonable
time; motion does NOT affect the judgment’s finality or suspend its operation