Civil Procedure I
Rule 1 – Scope and Purpose of the Rules
These rules govern the procedure of the US district courts in all suits of civil nature whether cognizable as cases at law or in
equity or in admiralty, with the exceptions stated in Rule 81. They shall be construed and administered to secure the just,
speedy, and inexpensive determination of every action.
PLEADING: Complaint & Answer
I. Purpose
A. Gives notice and tests legal sufficiency of allegations. Notice must be sufficient to allow other
parties to make pre-trial and trial preparation
B. Serve as gatekeeper for next stage – should case proceed to discovery?
C. To invoke some body of law (e.g., Negligence, Contract)
D. Relate a set of facts w/in that body of law
II. Elements of Complaint
A. Rule 3: Action is begun by filing complaint w/ court [selection of a court]
B. Subject matter jurisdiction: court’s authority to hear a cause [federal question, diversity of
citizenship issues] 28 U.S.C §§ 1331 & 1332
case on point: Gordon v. Steele p. 7
Based on the student’s connection to ID and her subjective intent of not returning to PA in the foreseeable future, she
was considered a citizen of ID for the purpose of diversity jurisdiction. Motion to dismiss for lack of diversity denied.
1. Why file suit in Federal Courts?
a. generally bigger backlog in state courts
b. federal judges are more insulated from political pressures b/c they are not elected
c. judges at the federal level are considered to be of higher caliber
d. federal procedural law is applied as opposed to state substantive law
C. Personal jurisdiction: court must have power to render judgment against a particular 
D. Venue: which court [where  resides OR where substantial portion of event occurred]
E. Rule 4: Summons
1. 4(a) Forms: signed by clerk, identifies court and parties
2. 4(b) Issuance: proper forms shall be signed by clerk of court before  serves to 
3. 4(c) Service w/ Complaint: by someone other than 
4. 4(d) Waiver of Service:  is mailed complaint and waiver of service form
5. 4(m) Service must be completed w/in 120 days after filing complaint w/ court otherwise the
court upon motion may dismiss w/ prejudice
F. Rule 5: Every required paper must be served to party or attorney
G. Limits to Pleadings: Rule 7(a)
H. How to Make Motions: Rule 7(b)
Rule 7 – Pleadings Allowed; Forms of Motions
(a) Limits to Pleadings:
1. There shall be a complaint and answer;
2. A reply to a counterclaim denominated as such;
3. An answer to a cross-claim, if the answer contains a cross-claim;
4. A third party complaint, if person was not an original party summoned under Rule 14;
5. A third party answer, if a third party complaint is served.
6. No other pleadings allowed; court may order a reply to an answer.
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(b) How to Make Motions:
1. Motion shall be made in writing unless made during hearing or trial
2. Shall state w/ particularity grounds for relief and type of relief sought
3. Rules of captioning ad forms of pleadings are applicable
4. All motions shall be signed in accordance with Rule 11
I.
Pleadings must set forth a claim showing  is entitled to relief: Rule 8
case on point: People ex. rel. D.O.T. v. Superior Court p. 404
 alleged that ’s acted negligently by failing to construct median barrier. Statutory requirements in CA are different
[code pleadings], which require more specificity in complaint than Federal rules. Inadequate pleadings prevent  from
determining under what theory s are seeking relief and deprives s of possible defenses.The complaint form as it
stands fails to meet essential pleading requirements to state a cause of action.
case on point: Bell v. Novick Transfer Co. p. 18
 wants more information regarding how he was negligent. Court denies motion b/c complaint complies w/ R8
[requirement of a short and plain statement of the claim showing that  is entitled to relief] and that more information
can be gained in discovery.
Rule 8 – General Rules of Pleading
(a) Claims for Relief shall contain:
1. A short statement of the grounds upon which the court’s jurisdiction depends, unless the court
already has jurisdiction and the claim needs no new grounds of jurisdiction to support it.
2. A short and plain statement o the claim showing that the pleader is entitled to relief
3. A demand for judgment for the relief the pleader seeks.
(b) Defenses; Form of Denials:
1. A party shall state in short and plain terms the party’s defenses to each claim asserted and shall
admit or deny the averments upon which the adverse party relies.
2. A party may deny with specificity: denying only a part or a qualification of an averment OR
3. A party may generally deny all the averments if party intends in good faith to contest all of the
adverse ’s allegations
(c) Affirmative Defenses:
1. Requires  to plead affirmatively to any of the 19 items specifically listed or to any other matter
constituting an avoidance or an affirmative defense.
(d) Effect of Failure to Deny:
1. All averments in a responsive pleading are admitted when not denied in the answer.
(e) Pleading to Be Concise and Direct; Consistency:
1. Each averment shall be simple, concise, and direct
2. Subject to R11, a party may state as many separate claims or defenses as party has regardless
of consistency and whether based on legal, equitable, or maritime grounds.
(f) Construction of Pleadings:
1. Pleadings shall be so construed as to do substantial justice.
Rule 9 – Pleading Special Matters
Notice of these “special matters” are thought to be necessary for opponent to be able to prepare for trial;
typically claims which the opponent will not be expecting unless attention is specifically called to them.
(a) Capacity: any denial of any party’s legal capacity to sue or be sued
(b) Fraud, Mistake, Condition of the Mind: circumstances constituting fraud or mistake shall be stated
with particularity
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(c) Conditions Precedent: A denial of performance of occurrence shall be made specifically and with
particularity
(d) Official Document or Act: sufficient to aver document issued or act done in compliance w/ law
(e) Judgment: sufficient to aver judgment w/o setting forth matter showing jurisdiction to render it
(f) Time and Place: averments of time and place are material matter
(g) Special Damage: when claimed, must be specifically stated
(h) Admiralty and Maritime Claims
Rule 10 – Forms of Pleadings
(a) Caption; Name of Parties
(b) Paragraphs; Separate Statements
(c) Adoption of Reference; Exhibits
J. Investigations and Representations to the Court: Rule 11 imposes obligation that parties
must make pre-filing investigation to ensure the facts of the law and the evidence they are using
are valid. Pleadings must be signed.
case on point: Bridges v. Diesel Service p. 15
In prior proceedings court dismissed complaint w/o prejudice for failure to exhaust administrative remedies w/ EEOC.
 moved for sanctions under R11, but R11 intended as deterrence of improper conduct. As such, its use should be
reserved for exceptional circumstances where a claim is patently unmeritorious or frivolous. Where error is procedural
rather than substantive and attorney makes every effort to correct problem, sanctions may not be suitable.
case on point: Smith v. Egger Supp.1
Court ruled that  did not conduct a proper legal investigation before filing claim b/c complaint was considered
frivolous as a matter of law. R11 requires attorneys to “stop and think” about the merits of the claim and whether they
should be amended or reconsidered.
case on point: Business Guides v. Chromatic Communications p. 424
Court imposed sanctions on  (client) for failing to inquire into the accuracy of the remaining seeds and dismissed
case w/ prejudice. Standard of conduct is one of objective reasonableness of investigation and whether  accepts
errors and tries to correct them. Once an attorney realizes that a fact represented in a complaint may not be true,
they can no longer assert that fact.
case on point: Religious Tech. Ctr. v. Gerbode
p. 427
 frivolously filed a lawsuit against . Court invoked R11 and sanctioned ’s attorney, co-counsel, and law firm. The
court may use its discretion in sanctioning firms and represented parties.
K. Burdens of 
1. burden of pleading: must allege elements of claim sufficiently
2. burden of production: must conduct factual investigations and provide evidence
3. burden of persuasion: must persuade trier of facts
Rule 11 – Signings of Pleadings, Motions, and Other Papers; Representations to Court;
Sanctions
(a) Signature: Every pleading, written motion, and other paper shall be signed by at least one attorney
of record w/ name, address, and phone #. If not represented, then shall be signed by party.
(b) Representations to the Court: signing person is certifying that to the best of the person’s
knowledge, information, and belief, formed after an inquiry reasonable circumstances that:
1. Claim is not presented for any improper purposes, such as to harass, cause unnecessary delay
or needless increase in the cost of litigation.
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2. Claims, defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for modification, extension or reversal of existing law.
3. Allegations and factual contentions have evidentiary support or will have after discovery
4. Denials of factual contention are reasonably based on evidence of lack of information.
Note: Counsel is not obligated to go back and make amendments to pleadings and answers once
more facts become available. Accuracy is determined at the time of filing. However, if facts have
changed, counsel is precluded from asserting positions based on the original pleadings/answers.
(c) Sanctions: If (b) has been violated, court may, subject to conditions below, impose appropriate
sanction upon the attorneys, law firms, or parties that have violated (b) or are responsible
1. How initiated:
a. A motion under Rule 5. Cannot be filed or presented to court w/in 21 days after service of
motion. If warranted, the court may award the prevailing party attorney’s fees.
Safe Harbor Rule – Must allow other party 21 days to correct error.
b. By court’s own initiative directing party to show cause why it violated.
2. Nature of Sanction; Limitations:
a. Court may impose appropriate sanctions that are limited to what is sufficient to deter repetition of
such conduct. Subject to limitations below, sanctions may include directives of nonmonetary
nature, an order to pay a penalty, reasonable attorney’s fees, and other expenses incurred.
i. Monetary sanctions may not be awarded against a represented party for violation of (b)(2).
ii. Monetary sanctions may not be awarded on the court’s initiative unless court issues its
order to show cause before a voluntary dismissal or settlement of the claims made by or
against the party which is or whose attorney is being sanctioned.
(d) Inapplicability to Discovery: Subdivisions (a)-(c) do not apply to disclosures and discovery
requests, responses, objections, and motions that are subject to provisions of Rules 26-37.
III. RESPONDING TO A COMPLAINT
A. Answers and Affirmative Defenses
1. Defenses to Complaint: Rule 7 -  must respond w/ motions to dismiss or answer w/in 20
days [60 days if service is waived]
a. Test for sufficiency for dismissal: Take everything  says as true and  still has no
case.
2. Rule 8(b):  shall admit, deny, or state no knowledge in short plain statement.
 must deny w/ specificity.
case on point: Zielinksi v. Philadelphia Piers, Inc. p. 457
’s complaint lumped crucial elements into one paragraph.  denied all of that paragraph, including ownership
and control over the forklift that caused ’s injury. It turns out that  was suing wrong company. Court held that 
should have admitted and denied specific statements in the paragraph. R8 requires more specific answer.
3. Affirmative Defenses shall be listed: Rule 8(c)
case on point: Layman v. Southwestern Bell p. 463
 alleged that  entered her property w/o permission. In answer  failed to raise affirmative defense of an
easement. Trial court allowed  to submit easement as evidence. Appellate court reversed b/c  had burden of
raising affirmative defense and failure to do so bars  from raising such a defense at trial.
B. Pre-Answer Motions [ can use to attack Complaint]
1. Failure to plead will lead to a default judgment R55
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2. Rule 12(b) Motions: Should raise as many as possible at once.
Rule 12 – Defenses and Objections—When and How Presented—by Pleading or Motion—
Motion for Judgment on the Pleadings
(a) When Presented: w/in 20 days or 60 days w/ a waiver
(b) How Presented: can file a pre-answer motion and if denied, file an answer
Following defenses may at the option of pleader be made by motion:
1. Lack of subject matter jurisdiction
Can be raised at anytime, even on appeal
2. Lack of personal jurisdiction
Must be raised in initial
3. Improper venue
pre-answer motion
4. Insufficiency of Process
5. Insufficiency of service of process
6. Failure to state a claim upon which relief can be granted
Must be raised before trial
7. Failure to join party under R19
1, 2 – Objections of power of court to hear the case.
If either motion is successful, case ends.
3, 4, 5 – Objections of procedure. Defects correctable.
6 , 7 – Challenges the merits of the case. Correctable.
(c) Motion for Judgment on the pleadings: Used only for legal issues. Motion is available once 
files an answer b/c the court needs to hear BOTH sides of the story before making ruling. Court
applies JMOL [R56] standard b/c there’s no factual dispute.
(d) Preliminary Hearings: Automatic hearings anytime R12 motions are made unless court defers
hearing until trial.
(e) Motion for More Definite Statement: For a pleading is so vague and ambiguous that a responsive
party cannot be expected to frame a responsive pleading. Motion shall point out defects complained
of and the details desired.
(f) Motion to Strike:
1. any defense or claim that has no legal basis
2. any frivolous, scandalous, or immaterial matter
(g) Consolidation of Defenses in Motion: Except for motions provided in 12(h), 12(b)(2)-(5) motions
must all be raised in pre-answer motion, otherwise non-raised ones will be waived.
(h) Waiver or Preservation of Certain Defenses:
1. 12(b)(2)-(5) are waived if omitted under 12(g).
2. 12(b)(1), (6), (7) are preserved from 12(g).
3. Whenever it appears by suggestion that courts lack subject matter jurisdiction [12(b)(1)], court
shall dismiss action
C.  can initiate counterclaims and cross-claims
Rule 13 – Counterclaim and Cross-Claim
(a) Compulsory Counterclaims: arising from the same transaction
(b) Permissive Counterclaims: not arising from the same transaction
IV. AMENDMENTS to PLEADINGS
A. Rule 15(a):  is allowed to make changes any time before responsive pleading. Courts give
leave freely where justice so requires.
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case on point: Beeck v. Aquaslide p. 470
 sued manufacturer for injuries sustained on ’s defective water slide.  admitted that it was their slide, but later
inspection ruled that it wasn’t. By this time statute of limitations had run. Court allowed  to amend complaint b/c 
didn’t intentionally mislead  b/c  would not have a case against real manufacturer since SofL had run. Amendments
shall be allowed when it doesn’t prejudice opposing party.
B. Rule 15(c): Relation back – If statute of limitations has run, amendments having the same
factual basis as the original complaint can relate back.
case on point: Moore v. Baker p. 477
 had an operation which left her severely scarred and permanently disabled.  originally alleged
’s failure to obtain informed consent.  now wanted to change complaint to negligence. Court
says NO. New allegations are based on different transactions: informed consent (before surgery)
and negligence (after surgery).  was not put on notice and allowing the amendment would
change entire make-up and strategy of the case. Amended complaint relates back only if facts to
be proved are same as original complaint.
case on point: Bonerb v. Richard J. Caron Foundation p. 479
 slipped on muddy basketball court and sued based on negligent maintenance of courts.  later wanted to add
counseling malpractice b/c s should have supervised activity, which was considered therapy, better. The amended
complaint was allowed b/c it was based on the same facts of the original complaint:  still claiming negligence.
Rule 15 – Amended and Supplemental Pleadings
(a) Amendments: Party is allowed to amend answer before trial is set or w/in 20 days after it is
served. Otherwise a party may amend pleadings only by leave of court or written consent by
adverse party. Leave shall be freely given where justice so requires.
(b) Amendments to Conform to the Evidence: Used to have evidence presented at trial conform to
the pleadings unless objecting party can satisfy the court that admission of such evidence would
prejudice the party in maintaining the party’s action or defense upon the merits.
(c) Relation Back of Amendments: Amendment relates back to the date of original pleading when:
1. Permitted by the law that provides the statute of limitations applicable to the action.
2. Claim or defense arises out of the conduct, transaction, or occurrence in original pleading
3. Amendment changes the party or the naming of the party against whom a claim is asserted if
provision (2) is satisfied AND
a. party has notice of claim AND
b. knew (or should have known), but for a mistake, would be part of action
(d) Supplemental Pleadings: Party shall be allowed to set forth events that have occurred since
pleading. Permission may be granted even if original pleading is defective in stating claim for relief
or defense.
DISCOVERY
I.
Objectives:
A.
B.
C.
D.
E.
F.
Compel disclosures of witnesses, evidence, documents, and other matters before trial
Narrows issues and clarifies opposition’s case
Legal theory is identified
Serves as gatekeeper – Should case proceed any further?
Development of facts
Promotes settlement
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II. Conflict: between efficiency goals and goals of adversarial system – courts want speedy trials, but
attorneys want to protect their parties’ interests.
III. R11 requirements: Claim must be grounded in fact, therefore  must investigate before discovery
IV. General Timeline
A. Judge: R16(a) – judge has discretionary authority to hold as many pre-trial conferences as
necessary
B. Attorneys:
1. R26(f): Attorneys must meet 14 days before R16(b) conference w/ judge to discuss claims
and defenses, propose a plan for discovery and attempt settlement.
2. R26(a)(1): Attorneys must exchange automatic disclosure lists at or w/in 10 days of R25(f)
counsel meeting, which must occur prior to pre-trial conference w/ judge.
V. Sanctions for non-cooperation
A. Rule 37(a) – For Parties: In addition to contempt sanctions, court may strike claims and
defenses, enter judgments of dismissal or default, prohibit admission of evidence, shift fees and
costs incurred as result of noncompliance w/ discovery orders.
B. Rule 45 – For Non-Parties: Failure to obey subpoena can result in sanctions of contempt
[fines, imprisonment, or both]
VI. Scope of Discovery
A. Limitations:
1. Rule 26: Party is entitled to discovery of relevant and admissible materials that lead to
discovery of admissible evidence. Materials do not have to be admissible to be discoverable.
case on point: Steffan v. Cheney p. 489
Naval officer was dismissed b/c of homosexuality. Court ruled that homosexuality was not relevant at trial. ’s
conduct is irrelevant to suit.
2. Rule 26(e)(1): Parties shall supplement discovery when information is incomplete or
incorrect
3. Rule 26(b)(3): Work Product Rule – cannot discover mental impressions or opinions of
attorneys prepared in anticipation of litigation
a. Exceptions: Requesting party must show a substantial need for material and inability to
obtain by equivalent means b/c of undue hardship.
case on point: Hickman v. Taylor
’s attorney is not required to turn over personal notes or memoranda of law. However, attorney was required to
turn over factual information.
b. Reasons to protect attorney work product:
i.
ii.
iii.
iv.
v.
legal theories and opinions are not facts
protects adversarial system
prevents borrowing of attorney’s thoughts
freedom from intrusion by opposing party
public policy concerns: attorney will delay writing things down
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4. Rule 26(b)(1): Privileged Information – not discoverable, e.g, attorney-client, trade secrets,
 cannot be compelled to incriminate self.
5. Privacy – Protective order – Rule 26(c)
case on point: Stalnaker v. Kmart Corp. p. 508
 files sexual harassment claim.  seeks protective order of the sexual conduct of non-party witnesses. Court
sustains protective order of sexual conduct of witnesses not relevant and discoverable, but any sexual
harassment by  is discoverable.
B. Automatic Disclosures: Rule 26(a)(1)
C. Disclosure of Expert Testimony
1. General rules:
a. R26(a)(2) – experts shall be identified to other party and shall prepare written report.
b. R26(b)(4)(B) – If non-testifying expert, facts and opinions through depositions and
interrogatories, upon showing of exceptional circumstances
2. Four Types of Experts:
a. Retained Testifying Expert: R26(a)(2) and R26(b)(4)(B)
b. Retained Non-Testifying Expert: R26(b)(4)(B) – party does not have to disclose unless
the other party shows substantial need or if that expert did a direct mental or physical
evaluation under R35(b)
c. Consulted, Non-Retained Experts – not specifically covered under the rules, but could
be covered under work product
d. Unaffiliated Experts: R45(c)(3)(B) – testimony not discoverable unless requesting party
can show substantial need and expert is reasonably compensated. Requesting party will
need to subpoena R45 b/c this information is privileged because it is too burdensome on
experts if they have to testify every time another expert consulted his work.
case on point: Thompson v. Haskell Co. p. 539
 sought a protective order of her psychological records. ’s psychologist was later hired as an expert. Record is
not privileged b/c treating psychologist is an expert witness. Therefore, report is subject to discovery under
R26(b)(4)(B).
case on point: Chiquita v. Bolero Reefer
 was not allowed access to non-testifying expert b/c  had access to ship but failed investigate. No hardship
found, so no access to expert.
Rule 26 – General Provisions Governing Discovery; Duty of Disclosure
(a) Required Disclosures; Methods to Discover Additional Matter
1. Initial Disclosures: must occur w/in 10 days after counsel’s R26(F) meeting
a. must disclose name, address, phone # of person likely to have discoverable information
about matters pled w/ particularity
b. provide copy or description and locations of all documents and tangible items pertaining to
complaint
c. computation of damages
d. copies of all insurance policies
2. Disclosure of Expert Testimony
a. experts shall be identified to other party
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b. experts shall prepare a signed written report containing opinion and basis for opinion; data
considered in opinions; statement of qualifications including publications w/in preceding 10
years; compensation to be paid for study and testimony; listing of other cases testified in
c. above disclosures shall be made 90 days before trial date
3. Pretrial Disclosures: must be made at least 30 days before trial; w/in 14 days thereafter a
opposing party may file an objection to deposition
a. a list of witnesses separately identifying whom party expects to be present and those whom
party may call if the need arises
b. designation of those witness whose testimony will be taken by deposition
c. an appropriate identification of each document or other exhibit party expects to offer and
those which the party may offer if the need arises
4. Form of Disclosures; Filing: must be signed, served, and promptly filed with court.
5. Methods to Discover Additional Matter:
a. depositions upon oral examination or written questions
b. written interrogatories
c. production of documents or things or permission to enter upon land of other property under
R34 or R45(a)(1)(C) for inspection and other purposes
d. physical and mental examinations
e. requests for admission.
(b) Discovery Scope and Limits
1. In general: Parties may obtain discovery regarding any NON-PRIVILEGED relevant subject
matter, reasonably calculated to lead to admissible evidence.
2. Limitations: Local rule may place limits on # and length of depositions and interrogatories.
Judge may place further limits if:
a. discovery sought is unreasonably cumulative of duplicative, or is obtainable from some other
source that is more convenient, less burdensome, or less expensive.
b. party seeking discovery has had ample opportunity by discovery in action to obtain the
information sought
c. burden or expense of proposed discovery outweighs its likely benefit, taking into account the
needs of the case, the amount in controversy, the parties’ resources, the importance of the
issues at stake, and the importance of the proposed discovery in resolving the issues.
3. Trial Preparation: Materials [WORK PRODUCT RULE]: Cannot discover mental impressions
or opinions of attorneys prepared in anticipation of litigation unless:
 party seeking discovery has substantial need of the materials in preparation for party’s case
and the party is unable without undue hardship to obtain substantial equivalent of materials
by other means. [e.g., witness has died or evidence has been destroyed or changed]
4. Trial Preparation: EXPERTS
a. A party may depose any expert planning to testify at trial.
b. Provided by R35(b) or upon showing of exceptional circumstances under which is
impracticable to otherwise obtain, experts not testifying may provide facts and discoveries
through an opposing party’s depositions and interrogatories
c. Party seeking to depose expert will pay the expert.
5. Claims of Privilege of Protection of Trial Preparation Materials: When a party withholds
otherwise discoverable information claiming it to be privileged is shall make the claim expressly
and shall describe the nature of the documents, communications, or things not produced or
disclosed in a manner that without revealing the privileged information will allow the parties to
discuss the applicability of the privilege to those materials.
(c) Protective Orders: Keeps certain information private like trade secrets or other confidential
research and development. Party may move for protection from discovery if highly personal. Court
may seal information and make it available only to parties of suit. Discovery may be limited so that
only certain matters may be inquired into, or the scope of the disclosure or discovery may be limited
to certain matters.
(d) Timing and Sequence of Discovery: Parties cannot begin discovery until they have met and set
up a schedule for discovery. They must meet at least 14 days before scheduling conference is held
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to discuss the nature of their claims and the possibility for settlement. They must develop a
discovery plan and submit a written report of it to the court w/in 10 days of the meeting.
(e) Supplemental Disclosures and Responses: Attorney has continuing duty to supplement or
correct disclosed information throughout discovery process.
1. Parties are under a duty to supplement at appropriate intervals disclosures under (a).
2. Parties are under a duty to amend prior responses to an interrogatory, request for production, or
request for admission if the party learns that the response is in some material respect incomplete
or incorrect.
(f) Meeting of the Parties; Planning for Discovery: Parties shall meet 14 days before pretrial
conference to arrange disclosures required under (1)(a). Written report shall be submitted w/in
19 days of meeting.
(g) Signing of Disclosures, Discovery Requests, Responses, and Objections: Unjustified requests
and refusals (even when not in violation of court order) are sanctioned by imposition of pertinent
attorney’s fees.
VII. Methods of Discovery
A. Oral Depositions:
1. Parties: Rule 30
2. Non-Parties: Rule 30 & Rule 45(a) – subpoena
B. Written Depositions: Rule 31
1. Drawbacks:
a. Lawyer cannot follow-up w/ questions on the spot
b. Questions can’t be rephrased for clarity
c. Lawyer is stuck with answers
C. Use of depositions at Trial: Rule 32
D. Interrogatories – only available for parties – Rule 33
E. Production of documents, things, and entry upon land
1. Non-party: Rule 45 – subpoena
2. Party and Non-party: Rule 34
F. Physical and Mental Examinations – only available for parties – Rule 35
case on point: Schlagenhauf v. Holder
s are passengers on a buss that collided w/ tractor.  sued tractor company who initiated a cross claim against the
bus company. Tractor company wanted to compel bus driver to 4 examinations, court compelled him to 9. Supreme
Court ruled that  failed to make an affirmative showing that ’s mental or physical condition was in controversy. In
case at hand, only eye exam relevant.
G. Request for Admission: Rule 36 – Purpose is to narrow down the issues and take matters out
of controversy
H. Enforcement of Discovery Rules: controlling abuses
1. Motion to compel: Parties – Rule 37 / Non-parties – Rule 45
2. Sanctions: Parties – Rule 37 / Non-parties – Rule 45
3. Abuses: Overwhelming requests Rule 26(c) / Stonewalling Rule 26(g)
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Rule 27 – Depostions Before Action or Pending Appeal
Rule 28 – Persons Before Whom Depositions May Be Taken
Rule 29 – Stipulations Regarding Discovery Procedure
Rule 30 – Depositions upon Oral Examination
(a) When Depositions May be Taken; When Leave Required: May depose witness under oath
outside of court. Could subpoena witness, but limit is 10 people w/o court’s permission. Need
court’s permission if witness is in prison.
(b) Notice of Examination: General Requirements; Method of Recording; Production of
Documents and Things; Deposition of Organization; Deposition by Telephone:
1. Reasonable notice needs to be given writing to persons whose depositions are being taken and
shall state time and place for taking depositions
2. Must state the record method of deposition
3. Any party may designate another method of record
4. Unless state otherwise, depositions shall be conducted by officer designated under R28
5. Notice to party may include a request made in compliance w/ R34 for the production of
documents and tangible things at the taking of the deposition. R34 procedure applies.
6. If deponent is a private or public corporation, association, etc., that organization shall designate
one or more officers who will consent to testify as to matters reasonably known or reasonably
available to the organization
(c) Examination and Cross-Examination; Record of Examination; Oath; Objections:
Objections shall be made, recorded and preserved. Witness must answer to the best of his ability.
Counsel can go to court later to address the objection.
(d) Schedule and Duration; Motion to Terminate or Limit Examination; Sanctions for Delay:
1. Witness need not answer if the information is:
a. privileged
b. if there’s a limitation on evidence directed by the court, OR
c. the attorney plans to make a motion for protective order [R26(c)].
2. Court may limit duration of depositions, but shall allow additional time consistent w/
R26(b)(2) if needed for fair examination of deponent or if the deponent or another party impedes
or delays the examination. If such delay is found, court may impose sanctions upon persons
responsible for reasonable costs and attorney’s fees incurred by parties as a result thereof.
3. Permits party to bring motion to cease a deposition on the grounds that it is being conducted
in bad faith or in such a manner as unreasonably to annoy, embarrass, or oppress the deponent
or the party. Court may choose to limit the scope and manner of the deposition as provided in
R26(c). Provisions of R37(a)(4) apply to awarding of expenses incurred in relation to motion.
(e) Review by Witness; Changes; Signing: Witness will have opportunity to review deposition
records, make changes and sign it.
(f) Certification and Filing by Officer; Exhibits; Copies; Notice of Filing
(g) Failure to Attend or to Serve Subpoena; Expenses: Reasonable attorney’s fees may be incurred
by party failing to attend deposition
Rule 31 – Depositions Upon Written Requests: Attorney writes questions and send to court reporter
presiding over deposition to ask the questions. Limit is 10 w/o court permission.
Rule 32 – Use of Depositions in Court Proceedings: Depositions may be used to impeach
witnesses on the stand.
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Rule 33 – Interrogatories to Parties:
(a) Availability: May be served w/o leave of court. Limited to 25 questions including all discrete
subparts to be answered by party served or a designated officer or agent, if it is a corporation,
association, or government agency.
(b) Answers and Objections:
1. Must answer each question separately and fully
2. Must be signed
3. Answers to interrogatories must be made w/in 30 days
4. Objections shall be stated w/ specificity
5. Party submitting interrogatory may move for R37(a) order w/ respect to any objection to or other
failure to answer an interrogatory
(c) Scope; Use at Trial: may relate to any matters which can be inquired into under R26(b)(1)
(d) Option to Produce Business Records: sufficient to specify the records from which the answer
may be derived or ascertained and to afford the party serving the interrogatory reasonably
opportunity to examine, audit, or inspect such records and to make copies compilations, abstracts or
summaries.
Rule 34 – Production of Documents/Things and Entry upon Land for Inspection/Other Purposes
(a) Scope: May request production of all documents, photographs, recordings, records, and other
evidentiary items and must allow access to property for inspection and measuring.
(b) Procedure: Request shall set forth either by individual item or by category, the items to be
inspected, and describe each w/ reasonably particularity; shall also specify a reasonably time, place
and manner of making inspection and performing the related acts.
(c) Persons Not Parties: A person not a party to the action may be compelled to produce documents
and things or to submit to an inspection as provided in R45.
Rule 35 – Physical and Mental Examination of Persons:
(a) Order for Examination: Requirements that must be met to submit to exams:
 showing of good cause (party’s claim warrants such exams)
 give notice to party to be examined and all parties involved
 specify time, place, manner, conditions, and scope
 specify person or persons doing the examination
(b) Report of Examiner: Examining doctors may swap information. Party submitting to exam shall
receive a copy of exam, if requested. Original party requesting exam would then entitled upon
request to receive from the party against whom the order is made a like report of any examination,
previously or thereafter made.
Rule 36 – Requests for Admission: Purpose is to narrow down the issues to be tried and takes
matters out of controversy
(a) Request for Admission: One party asks the other to admit to facts that are at the core of the case
and w/in the scope of R26(b). Party may agree or object w/in 30 days. If party opposes and those
facts are later proved to be true, moving party may be awarded reasonable costs incurred in proving
facts were actually true, R37(a). Failure to object w/in this time period = admittance.
(b) Effect of Admission: Any matter admitted is deemed true and agreed for the pending action only.
Rule 37 – Failure to Make or Cooperate in Discovery: SANCTIONS
(a) Motion for Order Compelling Disclosure or Discovery:
1. Appropriate Court in which action is pending.
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2. Must be made upon reasonable notice to party. Moving party include a certification with motion
showing movant has in good faith conferred or attempted to confer with the person or party
failing to make the disclosure or discovery in an effort to secure the information or material w/o
court action.
3. An evasive or incomplete disclosure, answer, or response is to be treated as a failure to
disclose, answer, or respond.
4. Expenses and Sanctions: If motion granted or if disclosure or requested discovery is provided
after the motion was filed, the court shall, after affording an opportunity to be heard, require the
party to pay reasonable expense incurred in making the motion, including attorney’s fees.
(b) Failure to Comply with Order:
1. Sanctions by court in district where deposition is taken: If deponent fails to be sworn or to
answer a question, party will be considered in contempt of that court.
2. Sanctions by court in which action is pending: Failure to obey a court order to testify under
R30(b)(6), 31(a), 37(a), 35(a), 26(f) may result in following sanctions
a. An order that the matters regarding which the order was made or any other designated facts
shall be taken as established for the purposes of the action in accordance w/ party obtaining
the order
b. order refusing to allow disobedient party to support or oppose designated claims or
defenses, or prohibiting that party from introducing designated matters in evidence
c. order striking out pleadings or part there of, or staying further proceedings until order is
obeyed or dismissing action or proceeding or rendering a judgment by default against
party
May also have to pay reasonable expenses, including attorney’s fees, caused by the failure, unless
the court finds that the failure was substantially justified or that other circumstances make an award
of expenses unjust.
(c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit
1. A party w/o substantial justification fails to disclose info required by R26(a) or 26(e)(1) shall not,
unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a
motion any witness or information not so disclosed. Court may also require payment of
reasonable expenses, including attorney’s fees, caused by the failure. Sanctions may also
include subdivision b(2)(a)(b)(c).
2. If party fails to admit the genuineness of any document of the truth of any matter as requested
under R36, and if the party requesting the admissions thereafter proves the genuineness of the
document of the truth of the matter, the requesting party may apply to the court for an order
requiring failing party to pay reasonable expenses incurred, including attorney’s fees, unless
good reason is provided for the failure.
(d) Failure of Party to Attend at Own Deposition of Serve Answers to Interrogatories or Respond
to Request for Inspection: Sanctions under subdivision (b)(2)(a)(b)(c), reasonable expenses
incurred, including attorney’s fees
Rule 45 – Subpoena:
(a) Form; Issuance: Commands person who it is directed to give testimony or to produce and permit
inspection and copying of designated books, documents or tangible things in the possession,
custody or control of that person, or to permit inspection of premises, at a time and place therein
specified
(b) Service:
(c) Protection of Persons Subject to Subpoena:
1. Reasonable steps must be taken to avoid undue burden or expense on person subject to
subpoena
2. Person need not appear if documents or tangible things are what is commanded by subpoena
3. Court may modify or quash subpoena under certain circumstances. [see list in book for detail]
(d) Duties in Responding to Subpoena:
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1. documents must be produced as they are kept in the usual course of business
2. claims of privilege must be expressly made and shall be supported by a description of the nature
of the documents or things not produced to enable demanding party to contest claim
(e) Contempt: Failure of any person w/o adequate excuse to obey subpoena may be deemed in
contempt of the court from which subpoena was issued.
RESOLUTION WITHOUT TRIAL
I.
Dismiss for legal insufficiency – dismiss at pleadings
A. Lack of jurisdiction
B. Failure to state a claim
II. Dismiss for procedural insufficiencies – default judgments and dismissals Rule 55 & 41
Case on point: Peralta v. Heights Medical
Employer guaranteed a hospital bill for employee who failed to pay. Employer ignored the complaint papers, thinking
employee had paid. Court entered default judgment against company and refused to reverse b/c employer would not
have a defense any way. Appellate court rejects: Due process requires that  have notice of ’s application for default
judgment before default can be entered.
III. Dismiss for factual insufficiencies – Summary judgment Rule 56
A. Judgment shall be rendered in moving party shows that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter of law
B. Advantages: prevents futility of trial—avoids waste of time, expense and judicial resources of a
trial, BUT it’s rather drastic since it denies non-moving party an opportunity for trial.
case on point: Houchens v. American Home Insurance p. 43
 brought suit for breach of insurance policy contract when  refused to pay benefits of policy for accidental death
when ’s husband disappeared in Thailand and was subsequently declared dead under VA law. Husband had to die
by accident to collect. Ruling was that jury could not pile inferences upon inferences, inferences must be derived from
evidence. Inferences show equal support for opposing conclusions.
case on point: Celotex v. Catrett p. 630
 alleged that husband died as result of ’s products containing asbestos.  granted SJ b/c ’s evidence wasn’t
specific enough to place facts into issue. Supreme court finds no express or implied requirement in R56 that moving
party must support its motions w/ affidavits of other similar materials negating opponents claim. Moving party must
simply point out that there is an absence of evidence to support non-moving party’s case.
case on point: Donnelly v. Guoin
Mrs. Guoin’s son died at boarding school. Doctor at school ordered an autopsy and  challenged that the autopsy was
done w/o her permission. However, issue is immaterial b/c physicians allowed to conduct autopsies if death is
unknown. Partial SJ granted to . Genuine issue of fact must be created with evidence, not simply asserted. ’s
affidavit merely asserted conclusion w/o supplying any reasons, evidence or facts to support the basis for assertion.
case on point: Visser v. Packer p. 636
 granted SJ b/c  did not offer any evidence of age discrimination. The 3 affidavits submitted were similar, lawyerwritten and included amateur psychoanalysis. did not include personal knowledge. Inferences and opinions that form
basis of knowledge must be grounded on observation of firsthand experience.
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IV. Settlement – Contracting for Judgment: settlement at post trial phase to avoid appeal
A. Judgments belong to parties and can be reversed at their request, barring any extraordinary
circumstances
1. promotes settlement
2. accommodates parties’ interests
3. promotes fundamental purpose of judiciary which is to provide a forum for the resolution of
private disputes
4. about settling disputes, not creating policy
case on point: Neary v. UC Davis p. 595
Both parties agree to settle this slander case while it was being appealed. Settlement agreement included: appeal
would be dismissed w/ prejudice, lower court’s judgment would be vacated, and action in trial court would be
dismissed. Appellate court granted the vacatur on the following grounds: Don’t want to interfere w/ private
agreements and don’t want to discourage post-trial settlements.
B. Judgments are public property
1. Judgments are public and need good reason for vacatur
2. Removes incentive to settle early
3. Judgments are presumptively correct and shouldn’t be altered at will
4. Dispute is about clarifying the law
case on point: Bancorp v. Bonner Mall p. 598
Both parties agreed to reorganization plan in bankruptcy case. Parties stipulated that approval of plan would equal
settlement and moot the case.  then asked Supreme court to vacate lower court’s unfavorable ruling regarding “new
value exception”. Court refused. Court system is not personal use. If  did not like the rulings from the lower courts he
should’ve appealed.
V. Alternatives to Litigation
A. Mediation
B. Negotiation
C. Summary Jury
D. Arbitration
E. Early Neutral Evaluation
VI. Managerial Judging – Rule 16
Rule 55 – Default Judgment: designed to goad  into action; however, it functions as adjudication on
the merits w/o  ever telling his side of the story
(a) Entry: Default is enter by clerk against  when  fails to plead, defend, or appear.
[Note: This is not a final judgment, just a notation that  has failed to appear]
(b) Judgment:
1. By the Clerk: If the sum of ’s recovery is certain and specific, clerk shall enter judgment against 
unless  is an infant or is incompetent. Certification required that  did not respond to complaint.
2. By the Court: If the sum of ’s recovery is uncertain [and factual allegations are conceded as fact],
court shall enter judgment. Certification of non-response also required, but  is given written notice,
so  can support his claim of what the damages should be w/ evidence. The court may conduct
hearings to establish the truth of any averment of to determine the amount of damages.
(c) Setting Aside Default: Court can set aside default and judgment for good cause under R60(b).
Grounds: mistake, neglect, new evidence, any other similar reasons.
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Rule 41 – Dismissal of Actions
(a) Voluntary Dismissal
1. By Plaintiff; By Stipulation: an action may be dismissed by  w/o order of the court by filing a
notice at any time before service by the adverse party of an answer or of a motion for summary
judgment, whichever occurs first OR by filing a stipulation of dismissal signed by all parties who
have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the
dismissal is without prejudice. A dismissal acts as an adjudication on the merits if the  has
already had the same claim voluntarily dismissed in some court.
2. By Order of the Court: Court may dismiss w/o prejudice at the ’s instance, unless  has filed
a counterclaim; the action will not be dismissed if the action of  can stand on its own.
(b) Involuntary Dismissal:  can move for dismissal based on ’s failure to proceed with suit. A
dismissal in this situation operates as an adjudication on the merits.
(c) Dismissal of Counterclaim, Cross-claim, or Third-Party Claim: above rules also apply
(d) Costs of Previously Dismissed Action: Court can impose sanctions or fees if the same claim is
dismissed twice.
Rule 56 – Summary Judgment: judgment shall be rendered if moving party shows that there is no
genuine issue of material fact [outcome determinative] and that the moving party is entitled to a
judgment as a matter of law [JMOL]
(a) For Claimant: may move for SJ w/ or w/o supporting affidavits any time after 20 days from
commencement of action or after service of motion for SJ by adverse party
(b) For Defending Party: may move for SJ at any time w/ or w/o supporting affidavits
(c) Motions for Proceedings Thereon: must serve motion at least 10 days before hearing date; must
include pleadings, depositions, answers to interrogatories and admissions on file, together with
affidavits, if any, to show that there is not genuine issue as to any material fact and moving party is
entitled to JMOL. SJ may be entered on issue of liability alone, although there is genuine issue as
to amount of damages.
(d) Case on Fully Adjudicated on Motion: Partial SJ may be granted. Court may determine which
issues to grant SJ and which are genuine issues to try.
(e) Form of Affidavits; Further Testimony; Defense Required: Affidavits shall be based on personal
knowledge, not hearsay or inferences based on facts and conclusions and should set forth facts that
would be admissible at trial. When such evidence is presented the adverse party may not rest upon
the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response,
by affidavits or as otherwise shown in this rule must specifically set forth facts showing that there is
a genuine issue for trial.
(f) When Affidavits are Unavailable: Courts may grant time for adverse party to make investigation
to show there is a genuine issue of material fact.
(g) Affidavits Made in Bad Faith: If affidavits appear to be made in bad faith or solely for the purpose
of delay, court shall order party employing them to pay the other party’s reasonable expenses.
MANAGERIAL JUDGING
Rule 16 – Pretrial Conferences; Scheduling; Management
(a) Pretrial Conferences; Objectives: Court may direct attorneys to meet w/ judge after discovery to:
1. expedite disposition
2. establish control to prevent delay
3. discourage wasteful pretrial activities
4. improve trial with more thorough preparation
5. facilitate settlement
(b) Scheduling and Planning: After receiving a report under R26(f) or after consulting with attorneys,
court may enter a scheduling order that limits the time:
1. to join other parties or amend pleadings
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(c)
(d)
(e)
(f)
2. file motions
3. complete discovery
4. modify length and scope of discovery
5. set other conferences
6. any other appropriate matters
Subjects for Consideration at Pretrial Conferences: Court can take action with respect to:
1. Formulation and simplification of the issues, eliminating frivolous claims or defenses
2. Necessity or desirability of amending pleadings
3. Obtaining admissions of fact, rule on admissibility of evidence, stipulate documents
4. Avoidance of unnecessary proof and cumulative evidence
5. Appropriateness and timing of summary adjudication under R56
6. Control and scheduling of discovery
7. Identification of witnesses and documents; set other conferences and trial dates
8. Advisability of referring to a magistrate
9. Consideration of ADR
10. Form and substance of pretrial order
11. Disposition of pending motions
12. Necessity of adopting special procedures in special circumstances for complex issues
13. Necessity of a separate trial
14. Schedule order of evidence for SJ reasons
15. Time limit on presenting evidence
16. Anything else that’s necessary to facilitate a just, speedy, and inexpensive disposition
Final Pretrial Conference: Plan for trial including a program for facilitating the admission of
evidence
Pretrial Orders: control the course of trial. Modifications are allowed only to prevent manifest
injustice
Sanctions: If a party or party’s attorney fails to obey a scheduling or pretrial order, of if no
appearance is made, judge or other motion can impose sanctions.
Rule 68 – Offer of Judgment





At any time more than 10 days before trial begins,  may serve  an offer to allow judgment to be
taken against  for the money or property or to the effect specified in the offer, w/ costs then accrued
If w/in 10 days after service of process,  accepts offer, either party may file offer acceptance w/
proof of service to the clerk, who will enter judgment
An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a
proceeding to determine costs.
If judgement finally obtained by the  is not more favorable than the offer, the  must pay the
costs incurred after the making of the offer.
The fact that an offer is made and not accepted does not preclude a subsequent offer.
TRIAL
I. The Right to a Jury Trial
A. History analog test: If action had a jury at common law, then jury trial is granted
B. Equity cases: [p.668] – remedies such as injunctions, specific performance, rescission, and
accountings and procedural devices such as derivative suits, class actions, bills of peace, bills of
interpleader.
C. With modern day complexity, difficult to find antecedent or appropriate analogy in 1791
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case on point: Chauffeurs, Teamsters v. Terry p. 670
Court decides to look at historical remedies as opposed to issues to decide if a jury right exists. Brennan dissents:
using historical test results in forced comparisons that don’t work by judges ill-equipped to do historical analysis.
Results are time consuming and not predictable.
case on point: Amoco Oil v. Torcoman p. 685
Seeking of equitable relief in addition to legal relief doesn’t eliminate right to jury trial.
II. Selecting Jurors
case on point: Edmonson v. Leesville p. 703
’s attorney used 2/3 peremptory challenges to dismiss 2 black jurors.  objects to striking of jurors on basis of race.
Wants Batson extended to civil cases, require articulation of race-neutral explanation for striking jurors. Concern is
that it is inappropriate to extend b/c of constitutional protection applies to gov’t actions, not private. Parties cannot
strike for reasons of race alone.
III. Judicial Control over Juries – Judgment as a Matter of Law [JMOL]
case on point: Norton v. Snapper p. 53
 was injured while riding a lawnmower manufactured by .  presents expert testimony that deadman on mower
would’ve been effective in preventing injury. Causation evidence, although circumstantial was more than enough.
Judgment was reversed on appeal as to whether trial ct erred in granting JNOV to .
case on point: Pennsylvania Railroad v. Chamberlain p. 724
 was injured on the job while switching rail cars.  alleged he was forced out of train cair when 9-car string collided
with his car. One witness testified to hearing the crash, but did not actually see the crash.  failed to meet production
burden, evidence to circumstantial and the inferences too weak for jury to find that collision caused  to fall off tracks.
Court of Appeals reversed trial court order directing verdict for petitioner.
Rule 47 – Selection of Jurors
(a) Examination of Jurors: Court may permit parties or their attorneys to conduct examination of
prospective jurors or may itself conduct the examination.
(b) Peremptory Challenges: Allows the # of peremptory challenges provided by 28 U.S.C. §1870
(c) Excuse: The court may for good cause excuse a juror from service during trial or deliberation.
JUDGEMENT AS A MATTER OF LAW [formerly, JNOV-Judgment Notwithstanding Verdict or Directed
Verdict]: Serves nearly the same purpose as R56 SJ, only it comes later, usually at the close of both
parties’ cases
Rule 50 – JMOL in Jury Trials; Alternative Motion for New Trial; Conditional Rulings
(a) JMOL:
1. After an issue has been fully heard, the judge can determine that there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue and grant JMOL against
that party.
2. Motion must be made at any time before the case is submitted to the jury, especially if party
wants to move under R50(b) after trial.
(b) Renewing Motion for Judgment after Trial Alternative Motion for New Trial:
Movant may renew JMOL request w/in 10 days after entry of judgment. In ruling, the court may:
1. if verdict was returned:
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a. allow judgment by jury to stand
b. order a new trial, OR
c. direct entry of JMOL
2. if no verdict was returned:
a. order a new trial, OR
b. direct entry of JMOL
(c) Granting Renewed Motion for JMOL; Conditional Rulings; New Trial Motion:
1. If renewed motion for JMOL is granted, court shall also rule conditionally on motion for a new
trial. If JMOL is reversed on appeal, and the trial judge has conditionally granted the new trial
motion, the new trial occurs automatically, unless the appeals court specifies otherwise. If the
trial judge conditionally denies the new trial motion, the original verdict is reinstated when the
grant of JMOL is overturned on appeal.
(d) Same: Denial of Motion for JMOL: If motion for JMOL is denied, party who prevailed on that
motion may, as appellee, assert grounds entitling the party to a new trial.
FINAL JUDGMENT RULE
case on point: Liberty Mutual Insurance Co. v. Wetzel p. 764
 alleges that  violated Title VII (insurance benefits and maternity leave unfair).  wins at trial. C/A affirms. S/C vacates,
holding that no appellate jurisdiction due to no final judgment. T/C labeled final judgment, relying on R54(b), but many
issues were left unresolved.
case on point: Lauro Lines v. Chasser p. 773
 argues entitled to immediate appeal based on collateral source doctrine (one of the exceptions to final judgment rule).
Three conditions for collateral source doctrine to apply:
1. conclusively determined disputed Q
2. resolves important issue completely separately from merits of action
3. be effectively unreviewable on appeal from final judgment
28 U.S.C. §1291 – Final Decisions of District Courts
Party can appeal from final judgment, which ends the litigation on the merits and leaves nothing for the
court to do except execute the judgment.
28 U.S.C. §1292 – Interlocutory [Non-Final] Decisions
STANDARDS OF REVIEW
case on point: Andrews v. Bessemer City p. 786
 claims gender discrimination in application for position as Recreation Director. Trial out ruled that  was not hired on
account of sex. Appeal reverses. Supreme Court reverses and says trial court findings were not clearly erroneous. Circuit
court erred b/c applied de novo standard as opposed to clearly erronenous standard.
SCOPE OF APPELLATE REVIEW
Rule 52 – Finding by the Court; Judgment on Partial Findings
(a) Effect: Findings of fact, whether based on oral or documentary evidence, shall not be set aside
unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.
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(b) Amendment: On a party’s motion filed no later than 10 days after entry of judgment, court may
amend its findings—or make additional findings—and may amend the judgment accordingly.
(c) Judgment of Partial Findings: If during a trial w/o a jury, a party has been fully heard on an issue
and the court finds against the party on that issue, the court may enter JMOL against that party w/
respect to a claim or defense that cannot under controlling law be maintained or defeated w/o
favorable finding on that issue, or the court may decline to render any judgment until the close of all
evidence.
Rule 61 – Harmless Error
Unless refusal to take action on an error appears to the court inconsistent with substantial justice, there
will no grounds for granting a new trial or for setting aside a verdict or for vacating, modifying or
otherwise disturbing a judgment or order. The court at every stage of the proceeding must disregard
any error or defect in the proceeding which does not affect the substantial rights of the parties.
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Quicklist of Cases:
Amoco Oil – right to jury trial
Anderson – Scope of Appellate Review
Beeck v. Aquaslide [1977] – burden on opposing party to show prejudice in [R15(a)] motion to amend – p. 470
Bell v. Novick Transfer Co. [1955] – complaint meets [R8] claim standards, [R12(e)] motion denied – p. 18
Blank v. Sullivan & Cromwell [1976] – discovery relevance [R26] – p. 487
Bonerb v. Richard J. Caron Foundation [1994] – amended complaint does relate back [R15(c)] – p. 479
Bridges v. Diesel Service, Inc. [1994] – lawyer’s responsibility, failure to follow procedure [R11] – p.15
Business Guides v. Chromatic Comm. [1991] – failure to conduct proper inquiry [R11] sanctions – p. 424
Celotex – SJ
Chamberlain – JMOL
Chiquita Int’l Ltd. v. Bolero Reefer [1994] – exemption of protection of expert information [R26(b)(4)] – p.541
Chudasama v. Mazda [1997] – discovery abuse and sanctions [R37, 26(g)] – p. 549
Donnelly – SJ
Edmonson – selecting jurors
Gordon v. Steele [1974] – subject matter jurisdiction, diversity jurisdiction [R12(b)(1)] – p. 7
Haddle v. Garrison [1996] –  failed to state a claim upon which relief can be granted [R12(b)(6)] – p. 413
Hickman v. Taylor [1947] – work product [R26(b)(3)] – p. 525
Houchens – SJ
Lauro Lines – Exceptions to Final Judgment Rule
Layman v. Southwestern Bell [1977] – must plead affirmative defense, easement [R8(c)] – p. 463
Liberty Mutual – Final Judgment Rule
Moore v. Baker [1993] – amended complaint did not relate back to original complaint [R15(c)] – p. 477
Neary v. UC Davis [1992] – contracting for judgment – p. 595
Norton – JMOL
People ex rel. Dept. of Transport v. Superior Court [1992] – insufficient calm for relief [R8] – p. 404
Peralta v. Heights Medical [1988 ] – default judgment [R55] – p. 568
Religious Tech. Ctr. v. Gerbode [1994] – sanctions for lawyers & law firm for frivolous claim [R11(b)(2)] – p. 427
Schlagenhauf v. Holder [1964] – unnecessary medical examinations [R35] – p. 516
Smith v. Egger [1985] – attorney fees are warranted as a sanction under [R11] – Supp.1
Stalnaker v. Kmart Corp. [1996] – [R26(c)] – p. 508
Steffan v. Cheney [1990] – discovery relevance [R26] – p. 489
Terry – right to jury trial
Thompson v. The Haskell Co. [1994] – protection of expert information [R26(b)(4)] – p. 539
U.S. Bancorp v. Bonner Mall [1994] – contracting for judgment – p. 598
Visser – SJ
Zielinksi v. Philadelphia Piers, Inc. [1956] – denials must be clear in Answers [R8] – p. 457
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