Pro Se Handbook June 2012
Pro Se Handbook June 2012
US District Court
The Court gratefully acknowledges the assistance of the following individuals and organizations in the development of this edition of this Handbook: For content advice, writing and editing, Victoria Boesch of Munger Tolles & Olson LLP; Manjari Chawla of the federal court Legal Help Center, a program of the Bar Association of San Francisco volunteer Legal Services Program; and United States District Court ADR Program Director Howard Herman. For editing and proofreading, Magistrate Judge Jacqueline Scott Corley and United States District Court attorneys Christine Allen, Kathleen Campbell, Gina Ramos Campbell, Michael Deibert, Hannah Lee, and Griff Wodtke. For major writing, editing, content design, organization and legal research, J.D. Candidates Henry Chu and Carolyn Janna Lee of the University of California Hastings College of the Law. For illustrations and charts, J.D. Candidate Carolyn Janna Lee of the University of California Hastings College of the Law. For content design and plain language review, B.A. Candidate Jack Rose of the University of California, Berkeley. For review and cross-check of defined terms and the glossary, B.A. Candidate Alexander Luong of the University of California, Merced. For project management and general editorship, Lynn D. Fuller, United States District Court Operations Analyst.
TABLE OF CONTENTS
INTRODUCTION ............................................................................................................................................................... 1 TIPS FOR PRO SE LITIGANTS ................................................................................................................................................. 1 CHAPTER 1 WHAT SHOULD I THINK ABOUT BEFORE FILING A LAWSUIT? ................................................................... 2 TO BE HEARD IN THIS FEDERAL COURT, YOUR CASE HAS TO MEET ALL OF THESE REQUIREMENTS: .............................................. 2 HAVE YOU EXPLORED ALTERNATIVES TO SUING ....................................................................................................................... 4 CHAPTER 2 FINDING A LAWYER ..................................................................................................................................... 5 HOW CAN I FIND A LAWYER? ................................................................................................................................................ 5 WHAT ARE THE FEDERAL COURTHOUSE LEGAL HELP CENTERS & HOW CAN THEY HELP ME? ....................................................... 6 WHAT IS PRO BONO REPRESENTATION? ............................................................................................................................. 6 CHAPTER 3 HOW DO I RESEARCH THE LAW? ................................................................................................................ 6 PUBLIC LAW LIBRARIES IN THE NORTHERN DISTRICT OF CALIFORNIA (BY COUNTY) ...................................................................... 7 CHAPTER 4 HOW DO I DRAFT A COMPLAINT? ................................................................................................................ 9 WHAT DOES A COMPLAINT LOOK LIKE? ................................................................................................................................. 9 WHAT INFORMATION MUST BE IN A COMPLAINT? .................................................................................................................... 9 CHAPTER 5 HOW DO I FILE PAPERS WITH THE COURT? .............................................................................................. 12 GENERAL RULES FOR MANUAL FILING ................................................................................................................................. 12 HOW DO I FILE DOCUMENTS?............................................................................................................................................. 12 HOW IS FILING A COMPLAINT DIFFERENT FROM OTHER PAPERS? ........................................................................................... 13 WHAT IF I CANT AFFORD THE $350.00 FEE FOR FILING A NEW COMPLAINT? ........................................................................ 14 CHAPTER 6 ONCE MY CASE IS ASSIGNED TO A JUDGE, WHAT DO I DO? .................................................................... 14 CHAPTER 7 HOW CAN I MAKE SURE THAT I KNOW ABOUT EVERYTHING THAT IS HAPPENING IN MY CASE? ........... 16 HOW DO I REVIEW THE DOCKET?........................................................................................................................................ 16 WHERE CAN I ACCESS THE ELECTRONIC DOCKET? ................................................................................................................ 16 HOW DO I START VIEWING DOCKETS AND COURT DOCUMENTS WITH PACER? ........................................................................ 16 HOW DO I REVIEW THE CASE FILE? ..................................................................................................................................... 18 CHAPTER 8 WHAT ARE THE RULES FOR SERVING DOCUMENTS ON THE OTHER PARTIES TO THE LAWSUIT? .......... 18 WHAT ARE THE RULES FOR SERVING THE COMPLAINT? ......................................................................................................... 19 HOW DO I SUBMIT A SUMMONS TO THE CLERK OF COURT FOR ISSUANCE? .......................................................................... 19 WHAT IF I FILED IN FORMA PAUPERIS? ................................................................................................................................ 19 HOW DO I GET A SUMMONS IF I DID NOT FILE IN FORMA PAUPERIS? ...................................................................................... 19 WHAT DOCUMENTS DO I NEED TO SERVE ON THE DEFENDANT(S)? ........................................................................................ 19 IS THERE A TIME LIMIT FOR SERVING THE COMPLAINT AND SUMMONS?.................................................................................. 19 HOW CAN I GET THE DEFENDANT TO WAIVE SERVICE? .......................................................................................................... 20 WHAT IF I REQUESTED A WAIVER OF SERVICE AND THE DEFENDANT DOESNT SEND IT BACK?................................................... 20 HOW DO I SERVE . . . ......................................................................................................................................................... 20 WHAT IS A CERTIFICATE OF SERVICE?.................................................................................................................................. 22 WHAT ARE THE RULES FOR SERVICE OF DOCUMENTS OTHER THAN THE COMPLAINT?............................................................... 23 CHAPTER 9 FILING AND SERVING DOCUMENTS ELECTRONICALLY ............................................................................ 23 WHAT ARE THE TECHNICAL REQUIREMENTS FOR E-FILING? ................................................................................................... 23 WHAT ARE THE PROS AND CONS OF E-FILING? .................................................................................................................... 23 HOW DO I START E-FILING WITH ECF?................................................................................................................................ 24 IMPORTANT E-FILING TIPS .................................................................................................................................................. 24 CHAPTER 10 HOW DO I RESPOND TO A COMPLAINT? ................................................................................................. 25 WHAT HAPPENS WHEN A COMPLAINT IS SERVED? ................................................................................................................ 25 HOW MUCH TIME DO I HAVE TO RESPOND TO THE COMPLAINT? ............................................................................................ 25 HOW DO I PREPARE AN ANSWER TO A COMPLAINT?.............................................................................................................. 25
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CAN I MAKE CLAIMS AGAINST THE PLAINTIFF IN MY ANSWER? ............................................................................................... 26 CAN I AMEND THE ANSWER AFTER I FILE IT? ........................................................................................................................ 26 ONCE THE ANSWER IS FILED, DOES THE PLAINTIFF HAVE TO FILE A RESPONSE TO IT? .............................................................. 26 HOW DO I FILE A COUNTERCLAIM? ...................................................................................................................................... 27 ONCE A COUNTERCLAIM IS FILED, DOES THE PLAINTIFF HAVE TO FILE A RESPONSE TO IT? ........................................................ 27 WHAT IF I WANT TO SUE A NEW PARTY?.............................................................................................................................. 27 HOW CAN I USE A MOTION TO CHALLENGE THE COMPLAINT? ................................................................................................. 27 ABOUT MOTIONS TO DISMISS ............................................................................................................................................. 28 ABOUT MOTIONS FOR A MORE DEFINITE STATEMENT ............................................................................................................ 29 ABOUT MOTIONS TO STRIKE ............................................................................................................................................... 29 WHAT IS A DEFAULT JUDGMENT AND HOW DOES A PLAINTIFF OBTAIN ONE? ............................................................................ 29 OBTAINING RELIEF FROM A DEFAULT OR DEFAULT JUDGMENT ................................................................................................ 30 CHAPTER 11 WHAT IS A MOTION AND HOW DO I MAKE OR RESPOND TO ONE? ....................................................... 30 WHAT IS THE TIMELINE OF A MOTION? ................................................................................................................................ 30 WHAT ARE THE REQUIREMENTS FOR MOTION PAPERS? ......................................................................................................... 31 HOW DO I CHOOSE A HEARING DATE? ................................................................................................................................. 32 HOW DO I OPPOSE (OR NOT OPPOSE) A MOTION? ................................................................................................................ 32 WHAT IF I NEED MORE TIME TO RESPOND TO A MOTION? ..................................................................................................... 32 WHAT ARE THE REQUIREMENTS FOR REPLY BRIEFS? ............................................................................................................ 33 WHAT IF THE MOTION IS URGENT AND NEEDS TO BE DECIDED IN LESS THAN 35 DAYS? .......................................................... 34 CHAPTER 12 WHAT HAPPENS AT A COURT HEARING? ................................................................................................ 35 WHAT IS A HEARING? ........................................................................................................................................................ 35 HOW DO I PREPARE FOR A HEARING? ................................................................................................................................. 35 HOW SHOULD I DRESS AND BEHAVE AT A HEARING? ............................................................................................................ 35 HOW IS A COURTROOM ARRANGED AND WHERE DO I FIT IN? ................................................................................................. 35 WHAT HAPPENS AT A MOTION HEARING? ............................................................................................................................ 36 GENERAL ADVICE FOR HEARINGS ........................................................................................................................................ 37 CHAPTER 13 INITIAL DISCLOSURES: WHAT ARE THEY AND WHEN DO THEY HAPPEN? ............................................. 37 CHAPTER 14 WHAT IS A CASE MANAGEMENT (OR STATUS) CONFERENCE AND HOW DO I PREPARE FOR IT? ......... 38 WHEN IS THE INITIAL CASE MANAGEMENT CONFERENCE? ...................................................................................................... 38 DOES EVERY CASE HAVE A CASE MANAGEMENT CONFERENCE? ............................................................................................. 38 WHAT SHOULD I DO BEFORE THE INITIAL CASE MANAGEMENT CONFERENCE? .......................................................................... 38 WHY DO I HAVE TO MEET AND CONFER? ............................................................................................................................. 38 WHAT IS THE PROPOSED DISCOVERY PLAN? ........................................................................................................................ 39 WHAT IS THE CASE MANAGEMENT STATEMENT? ................................................................................................................... 39 WHAT HAPPENS AT THE INITIAL CASE MANAGEMENT CONFERENCE? ....................................................................................... 39 WHAT IS THE CASE MANAGEMENT ORDER? ......................................................................................................................... 39 WHAT SHOULD I DO BEFORE OTHER CONFERENCES WITH THE JUDGE? ................................................................................... 39 CHAPTER 15 WHAT IS ALTERNATIVE DISPUTE RESOLUTION (ADR)? .......................................................................... 40 CHAPTER 16 WHAT IS DISCOVERY? ............................................................................................................................. 41 WHEN CAN DISCOVERY BEGIN? .......................................................................................................................................... 41 WHAT ARE THE LIMITS ON DISCOVERY?............................................................................................................................... 41 DEPOSITIONS .................................................................................................................................................................... 42 INTERROGATORIES ............................................................................................................................................................. 44 REQUEST FOR DOCUMENT PRODUCTION .............................................................................................................................. 45 REQUESTS FOR ADMISSION ................................................................................................................................................ 46 PHYSICAL OR MENTAL EXAMINATIONS ................................................................................................................................. 47 CHAPTER 17 WHAT CAN I DO IF THERE ARE PROBLEMS WITH DISCLOSURES OR DISCOVERY?............................... 48 WHAT IS THE FIRST STEP? ................................................................................................................................................. 48 WHAT IF THE PARTIES CANT RESOLVE THE PROBLEM AND DISCOVERY IS STILL DUE? .............................................................. 48 WHAT IF THE PARTIES ARE STUCK ON A PROBLEM IN THE MIDDLE OF A DISCOVERY EVENT? .................................................... 48 WHAT DO I DO IF A PARTY DOES NOT RESPOND, OR IF THE RESPONSE IS INADEQUATE? ........................................................... 48 HOW DO I FILE A MOTION TO COMPEL?............................................................................................................................... 48
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WHO PAYS FOR EXPENSES OF MAKING THE MOTION TO COMPEL? ......................................................................................... 49 UNDER WHAT CIRCUMSTANCES CAN I ASK FOR DISCOVERY SANCTIONS? ................................................................................ 49 WHAT ARE THE COURT'S OPTIONS FOR DISCOVERY SANCTIONS? ............................................................................................ 49 WHO PAYS THE COST OF A MOTION FOR SANCTIONS? .......................................................................................................... 50 CHAPTER 18 WHAT IS A MOTION FOR SUMMARY JUDGMENT? .................................................................................. 50 FACTORS TO CONSIDER IN PLANNING TO MAKE OR DEFEND A SUMMARY JUDGMENT MOTION ................................................... 50 UNDER WHAT CIRCUMSTANCES IS A MOTION FOR SUMMARY JUDGMENT GRANTED?................................................................. 50 HOW DO I OPPOSE A MOTION FOR SUMMARY JUDGMENT? .................................................................................................... 50 WHAT DOES EACH SIDE NEED TO DO TO SUCCEED ON SUMMARY JUDGMENT? ........................................................................ 51 WHAT EVIDENCE DOES THE COURT CONSIDER FOR SUMMARY JUDGMENT? ............................................................................. 51 AFFIDAVITS AS EVIDENCE ON SUMMARY JUDGMENT .............................................................................................................. 51 WHAT IS HEARSAY?........................................................................................................................................................... 52 HOW DO I AUTHENTICATE MY EVIDENCE .............................................................................................................................. 52 WHAT IS A STATEMENT OF UNDISPUTED FACTS, AND WHY WOULD I FILE ONE? ....................................................................... 52 WHEN CAN A MOTION FOR SUMMARY JUDGMENT BE FILED? ................................................................................................. 52 WHAT IF MY OPPONENT FILES A SUMMARY JUDGMENT MOTION BUT I NEED MORE DISCOVERY TO OPPOSE IT? ........................... 52 CHAPTER 19 WHAT HAPPENS AT TRIAL? ..................................................................................................................... 53 WHAT KIND OF DISCLOSURES DO I HAVE TO GIVE THE OTHER PARTY BEFORE TRIAL?............................................................... 53 WHAT IS THE DIFFERENCE BETWEEN A JURY TRIAL AND A BENCH TRIAL? ................................................................................ 54 WHEN DOES THE TRIAL START?.......................................................................................................................................... 54 HOW DO I PREPARE FOR TRIAL? ......................................................................................................................................... 54 JURY SELECTION ............................................................................................................................................................... 55 OPENING STATEMENTS ...................................................................................................................................................... 55 IN THE TRIAL, WHICH SIDE PUTS ON WITNESSES FIRST? ....................................................................................................... 56 WHAT IF THE OTHER SIDE WANTS TO PUT ON IMPROPER EVIDENCE? ...................................................................................... 56 HOW IS AN OBJECTION MADE AND HANDLED? ..................................................................................................................... 56 WHAT IS A MOTION FOR JUDGMENT AS A MATTER OF LAW, AND WHEN CAN IT BE MADE? ....................................................... 56 WHEN DOES THE DEFENDANT GET TO PRESENT HIS OR HER CASE? ...................................................................................... 56 WHAT IS REBUTTAL? ......................................................................................................................................................... 56 WHAT HAPPENS AFTER BOTH SIDES HAVE FINISHED PRESENTING THEIR EVIDENCE? ................................................................ 57 IN A JURY TRIAL, WHAT DOES THE JURY DO AFTER CLOSING ARGUMENTS?.............................................................................. 57 IN A BENCH TRIAL, WHAT DOES THE JUDGE DO AFTER CLOSING ARGUMENTS? ........................................................................ 57 CHAPTER 20 WHAT CAN I DO IF I THINK THE JUDGE OR JURY MADE A MISTAKE? .................................................... 57 WHAT IS A MOTION FOR RECONSIDERATION AND HOW IS ONE MADE? .................................................................................... 57 WHAT ARE POST-JUDGMENT MOTIONS AND HOW ARE THEY USED? ........................................................................................ 58 WHAT ABOUT REVIEW OF A MAGISTRATE JUDGES DECISION? ................................................................................................ 59 WHAT IF THE PARTIES DID NOT CONSENT TO A MAGISTRATE JUDGE?...................................................................................... 60 WHAT ABOUT AN APPEAL? ................................................................................................................................................. 60 GLOSSARY ..................................................................................................................................................................... 61
III
INTRODUCTION
This handbook is designed to help people handling with civil lawsuits in federal court without legal representation. Proceeding without a lawyer is called proceeding pro se1, a Latin phrase meaning for oneself, or sometimes in propria persona, meaning "in his or her own person." Representing yourself in a lawsuit can be complicated, time consuming, and costly. Failing to follow court procedures can mean losing your case. For these reasons, you are urged to retain a lawyer if at all possible. Chapter 2 gives suggestions on finding a lawyer. This Handbook explains civil lawsuit procedures, but it does not teach you about the law. It is only a summary and it does not cover all procedures that may apply. Do not rely entirely on this Handbook. Make sure you read the applicable federal and local court rules yourself. To learn about the law, you will need to do research at a law library or online. It is up to you to find answers to your questions through your own research. This Court (the United States District Court for the Northern District of California) has a Clerks Office in the San Francisco, San Jose and Oakland courthouses. Clerks Office staff can help you with court procedures, but they cannot give you any legal advice. For example, they cannot help you decide what to do in your lawsuit, tell you what the law means, or even advise you when documents are due. There are Legal Help Centers in the San Francisco and San Jose Courthouses where you can get help with your lawsuit from an attorney who can help you prepare documents and give limited legal advice. This attorney will not be your lawyer and you will still be representing yourself. See Chapter 2 for more details.
Words appearing in this format in this Handbook are defined in the Glossary included at the back.
To Be Heard In This Federal Court, Your Case Has To Meet All Of These Requirements:
1. You must have a legal claim. You have a legal claim if (a) someone broke a law, AND, as a result, (b) you were personally harmed. You usually cannot sue on the basis of someone else being harmed. 2. You must start your case before the deadline. a. There are very strict deadlines for lawsuits called statutes of limitation. If you miss the deadline that applies to your case, the Court may be required to dismiss your caseeven if you are only a day late. b. To find out the deadline for your case, you can: i. Ask a lawyer, if you know one, or make an appointment with the federal courthouse Legal Help Center. (See Chapter 2 for details about the Legal Help Centers.) ii. Go to a law library or use online legal research tools to research the statute of limitation for your case. 3. You must be suing in the correct court. a. Federal courts can only decide certain kinds of cases: i. Cases involving federal lawnot state law (subject matter jurisdiction) OR ii. Cases in which the plaintiff and the defendant live in different states AND the amount in controversy is more than $75,000 (diversity jurisdiction). b. If your suit does not meet one of these descriptions, you cannot sue in federal court. You may be able to sue in state court. Do the federal courts have jurisdiction over your case?
4. You must be suing someone who is under the Courts power. A federal court in California cannot hear your case if it does not have power over the person or organization you are suing, meaning the Court lacks personal jurisdiction over the defendant. This Court can hear your case if the defendant:
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Lives in California; OR Did something in California that is the reason for your lawsuit; OR Agreed to be sued in California; OR Has been personally served with a copy of your complaint in California (see Ch. 7); OR Has done things that have had significant effects in California.
Does the defendant live in California? NO Are actions by the defendant in California the reason for your lawsuit? NO Does the defendant agree to be sued in California? NO Was the defendant personally served with a copy of your complaint in California? NO NO Did the defendants actions have significant effects in California? YES YES YES YES
Federal courts in California probably have personal jurisdiction over your case.
YES
Federal courts in California probably DO NOT have personal jurisdiction over your case and your case may be dismissed.
5. You must sue in the right federal district for your case. a. This Courts jurisdiction is the Northern District of California, which includes these counties: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San Mateo, Santa Clara, Santa Cruz, Sonoma. b. The rules about suing in the right court are called venue rules. Our legal system has venue requirements so that it is not overly difficult for all parties to get to the courthouse. You can read the venue statute at 28 United States Code (U.S.C.) 1391. c. The right venue for your case is the district where: One of the defendants lives (but only if all defendants live in California); OR The events that are the reason for your lawsuit happened; OR A large part of the property you are suing about is located, OR You live, if you are suing the U.S. government or a federal agency or official for something done in an official capacity. d. If you start your case in the wrong district, the Court may transfer the case to the correct court. You would then have to go to that court to argue your case.
Did a substantial part of the events you are suing about happen in the Northern District of California?
The Northern District of California is probably the correct venue for your lawsuit
Is a large part of the property you are suing about located in the Northern District of California?
The Northern District of California is probably the wrong venue for your lawsuit.
Are you suing the U.S. government or a federal agency or official for something done in an official capacity AND do you live in the Northern District of California?
6. The person or agency you are suing must not have immunity. Some people and organizations cannot be successfully sued. This happens when a persons job entitles him or her to partial or complete immunity. For example, the federal government, state governments, judges and many government officials usually have immunity in civil cases. If federal and state governments have waived immunity to allow some types of suits, but these will be subject to additional rules and procedures, like stricter statutes of limitation. If you try to sue someone who has complete immunity in federal court, your case will be dismissed. To find out if the person or organization you are suing has immunity, you can: a. Ask a lawyer, if you know one, or make an appointment with the federal courthouse Legal Help Center. (See Chapter 2 for details about the Legal Help Centers.) b. Go to a law library. Ask how to research immunity from federal lawsuits. If you meet ALL six of these requirements, you can probably sue in this federal court.
Going to Governmental or Private Agencies Consider whether there are other processes you could use, or agencies you could enlist, to address your problem. Sometimes there is a governmental or private agency that can address your problem or lend you assistance. Examples of such agencies include: The Equal Employment Opportunity Commission (or an equivalent state or city or county agency) to address employment discrimination; The local police review board or office of citizens complaints to hear complaints about police conduct; A consumer protection agency or the local district attorneys office to investigate consumer fraud; The Better Business Bureau or private professional associations (e.g., associations of contractors, accountants, securities dealers, architects and engineers, etc.) to hear businessrelated complaints. Using a Small Claims Court In some cases you may have the option of filing a case in small claims court, which is designed to be used directly by people without formal training in the law. These courts are part of the California state court system. There is no equivalent to the small claims court in the federal courts. Alternative Dispute Resolution Dispute resolution servicessuch as mediation or arbitrationmay be faster and less expensive than taking a case to court. Mediation encourages parties to communicate clearly and constructively to find common ground or to identify solutions that can serve the parties real interests. Many counties have free or low-cost agencies that can assist you in finding a provider of alternative dispute resolution services. A listing can be found at the California Bars website, www.calbar.ca.gov/Public/Pamphlets/ResolveaDispute.aspx. There are also alternative dispute resolution options for parties who have filed lawsuits in this Court. Please refer to Chapter 15.
What Are The Federal Courthouse Legal Help Centers & How Can They Help Me?
The Court has established Legal Help Centers in the San Francisco and San Jose courthouses where people who are representing themselves in federal court cases can get advice from experienced attorneys. There is no fee for this service. Consultations with the federal courthouse Legal Help Center are by appointment only. The federal courthouse Legal Help Center attorney can: inform you about the federal court processes and procedures that you need to follow; explain court orders and other paperwork; answer your legal questions; and refer you to appropriate legal, social, and government services. If you seek help from the Legal Help Center, you will still represent yourself. The lawyer at the Legal Help Center cannot be your lawyer. If you have tried to find a lawyer but have not found one, the Legal Help Center may be able to help you. San Francisco Courthouse Legal Help Center: The Center is located on the 15th Floor, Room 2796. For an appointment call (415) 782-9000, extension 8657 or visit the Center to sign up in person. San Jose Courthouse Legal Help Center: The Center is located on the 4th Floor, Rooms 4093 & 4095. For an appointment call (408) 2971480. Please visit the Courts website, cand.uscourts.gov, or call the phone numbers listed above for current office hours, forms and policies for both Legal Help Centers.
c. Local Rules of the United States District Court for the Northern District of California: These are procedural rules that build on the Federal Rules of Civil Procedure and apply only in this Court. Review them: Online: cand.uscourts.gov/localrules OR At the Clerks Office OR At the federal courthouse Legal Help Center (see Chapter 2 for details) OR d. Judges Standing Orders: These are individual judges special rules that apply in all cases assigned to them. Normally, the Clerks Office will provide you with a copy of these when you file the complaint. You can also find them on your judges web page on the Courts website: cand.uscourts.gov/judges or you can contact the judges courtroom deputy. 2. Substantive law describes what you must prove to establish your claims. Each subject of a claim has a different set of laws that you need to learn. For example, different laws apply to an employment discrimination case than a real estate case. To find the substantive law that applies to your claimsfor example, the law regarding employment discrimination or social security benefitsyou will need to visit a law library. A law librarian can show you where to find the specific law that you need. Some public law libraries in the Northern District are listed below. Find some statutes and cases online for free on sites such as FindLaw (www.findlaw.com/casecode/). To look up unfamiliar legal terms, use: 1. The glossary at the back of this handbook (all glossary terms in this book are in a special format like this: service of process); 2. A legal dictionary, such as Blacks Law Dictionary; 3. Free online resources, such as dictionary.law.com.
2. University of California Law Library www.law.berkeley.edu/library.htm Boalt Hall, Berkeley, CA 94720; Phone: (510) 642-4044 CONTRA COSTA COUNTY Contra Costa County Public Law Library (three locations) www.cccpllib.org/
Main Branch A.F. Bray Courts Building 1020 Ward Street, 1st Floor Martinez, CA 94553 Phone: (925) 646-2783 Richmond Branch Superior Court Building 100 37th Street, Rm. 237 Richmond, CA 94805 Phone: (510) 374-3019 Pittsburg Branch Superior Court Building 100 Center Drive, Rm. 1045 Pittsburg, CA 94565 Phone: (925) 252-2800
SAN FRANCISCO COUNTY 1. San Francisco Law Library (three locations) www.sflawlibrary.org/
Civic Center Law Library 401 Van Ness Avenue, Rm. 400 San Francisco, CA 94102 Phone: (415) 554-6821 Financial District Branch Monadnock Building 685 Market Street, Suite 420 San Francisco, CA 94105 Phone: (415) 882-9310 Courthouse Reference Room Civic Center Courthouse 400 McAllister Street, Rm. 512 Phone: (415) 551-3647
2. Hastings College of the Law Library library.uchastings.edu/library/index.html 200 McAllister Street, 4th Floor, San Francisco, CA 94102; Phone: (415) 565-4750
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HUMBOLDT COUNTY
Humboldt County Law Library 812 4th Street, Rm. G04 Eureka, CA 95501 Phone: (707) 476-2356 http://co.humboldt.ca.us/law-library/
LAKE COUNTY
Lake County Law Library 175 3rd Street Lakeport, CA 95453 Phone: (707) 263-2205 www.co.lake.ca.us/Government/Directory/Law_Library.htm
MARIN COUNTY
Marin County Law Library 20 North San Pedro Road, Suite 2015 San Rafael, CA 94903 Phone: (415) 499-6355
MENDOCINO COUNTY
Mendocino County Law Library 100 North State Street, Rm. 307 Ukiah, CA 95482 Phone: (707) 463-4201 www.pacificsites.com/~lawlib/
NAPA COUNTY
Napa County Law Library Historic Courthouse 825 Brown Street Napa, CA 94559 Phone: (707) 299-1201 www.napalawlibrary.com/
SONOMA COUNTY
Sonoma County Law Library 2604 Ventura Avenue Santa Rosa, CA 95403 Phone: (707) 565-2668 www.sonomacountylawlibrary.org/
2. Subject Matter Jurisdiction The first numbered paragraph in your complaint (labeled Jurisdiction) should explain why this Court has the power to decide this kind of case. As discussed in Chapter 1, a federal court can hear a case based on: Federal question jurisdiction (a violation of federal law) for more information, read 28 U.S.C. 1331; OR
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Diversity jurisdiction (when all plaintiffs and all defendants are citizens of different states disputing more than $75,000)for more information, read 28 U.S.C. 1332. 3. Venue The next numbered paragraph (labeled Venue) should explain why the Northern District of California is the proper location for your lawsuit. Venue is usually determined by where a matter occurs or where a litigant resides. For more information, see Ch. 1 and 28 U.S.C. 1391. 4. Intradistrict Assignment The following paragraph (labeled Intradistrict Assignment) should state the division of the United States District Court for the Northern District of Californiaspecifically, San Francisco/Oakland, San Jose, or Eurekato which you believe the case should be assigned. The Courts venue rules are set forth in Civil Local Rule 3-2. Generally, cases from each county within the district are assigned as follows: San Francisco/Oakland: Alameda, Contra Costa, Marin, Napa, San Francisco, San Mateo, or Sonoma; and cases from Del Norte, Humboldt, Lake and Mendocino in which all parties do not consent to have their case heard by the Eureka magistrate judgesee Ch. 6. San Jose: Santa Clara, Santa Cruz, San Benito, or Monterey; Eureka: Del Norte, Humboldt, Lake and Mendocino (this venue requires all parties to consent to the jurisdiction of the United States magistrate judgesee Chapter 6). 5. Parties In separate paragraphs, identify the plaintiff(s) and the defendant(s) in the case. 6. Statement of Facts This section should explain the important facts in your case in numbered paragraphs. It should explain to the Court how the defendant violated the law and how you have been injured. If you refer to any documents in this section, you can attach them to the complaint as exhibits. 7. Claims This section should list your legal claims. If possible, you should include a separate section for each claim (Claim 1, Claim 2, etc.) identifying the specific law that you allege the defendant violated. 8. Request for Relief This section should explain what you want the Court to do. For example, you can ask the Court to order the defendant to pay you money or to give you your job back. Each type of relief you request should be in a separate numbered paragraph. 9. Demand for Jury Trial If you want a jury trial, you can request it at the end of your complaint or in a separate document. It is best to include this in your complaint because, if you do not request a jury trial within 10 days of filing your complaint, you may give up your right to a jury trial. You may decide you do not want to have a jury trial; in that event, the judge will decide the facts of your case at trial, if a trial is held. See Ch. 18 for more about trials. 10. Plaintiffs Signature At the end of the complaint, sign your name. When you sign your name, you are certifying to the court that you are filing your complaint in good faith. This means that you believe: You have a valid legal claim; AND You are not filing the case to harass the defendant; AND You have good reason to believe that what you say in the complaint is true.
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If you do not meet all of these requirements, the Court can require you to pay fines for harassment, frivolous arguments, or a lack of factual investigation. See Rule 11 of the Federal Rules of Civil Procedure.
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Important Rules for Using the Drop Box i. Before putting a document in the drop box, follow the instructions that are posted next to the drop box explaining how to date-stamp, label and identify your documents. ii. To receive a file-stamped copy back from the Court, provide an extra copy of the document with a self-addressed, stamped envelope, or an envelope marked FOR [you or whoever who will be picking up the copy] MESSENGER PICKUP BY: ____________________________________. iii. The drop box may not be used to file any papers regarding a matter that is scheduled for hearing within 7 calendar days. iv. If you use the drop box to file a complaint, you must include a check or money order for the current filing fee, made payable to Clerk, United States District Court. Do not enclose cash. 2. Fax Filing: Although this Court will accept fax copies for filing, you cannot fax the documents directly to the Court. Instead, you fax the documents to a fax filing service that, for a fee, files your documents in person at the Clerks Office. Civil Local Rule 5-2 provides detailed rules. To find a fax filing service, consult resources such as www.rapidlegal.com. a. You should direct the fax filing service to give the Court a marked CHAMBERS copy of the faxed document for the judge. b. When you file a document by fax, keep the original document and a record of the fax transmission in your file until the end of the case. 3. Filing by Mail: Mail the sign original document and a chambers copy to the Court for filing. To obtain a file-stamped copy by return mail, you must provide an extra copy with a self-addressed, stamped envelope. SAN FRANCISCO:
Clerks Office United States District Court 450 Golden Gate Ave., 16th Fl. San Francisco, CA 94102
OAKLAND:
Clerks Office United States District Court 1301 Clay St., Ste 400 South Oakland, CA 94612
SAN JOSE:
Clerks Office United States District Court 280 South 1st Street San Jose, CA 95113
The Eureka courthouse does not accept documents for filing. Paper filings for cases assigned to the Eureka division should be mailed to the San Francisco Clerks Office. 4. E-Filing: E-filing is the process of using the internet to file documents with the Court and serve them on other parties from your computer. It offers many advantages, including convenient access to Court records, saving time, postage expenses and administrative work. Pro Se litigants must first get permission from the Court in order to join the e-filing system. This is explained in Chapter 9. If you receive permission, you can file documents (other than the complaint) online at the Courts Electronic Case Filing (ECF) website and view case dockets and documents through the Public Access to Court Electronic Records (PACER) website, www.pacer.gov. More details about e-filing can be found in Chapter 9.
payment in cash (exact change required), check or money order made payable to Clerk, U.S. District Court, or credit card (Visa, MasterCard, American Express, and Discover Card accepted; credit card payments must be made in person).
What If I Cant Afford The $350.00 Fee For Filing A New Complaint?
If you cannot afford the $350.00 filing fee, you may file an Application to Proceed In Forma Pauperis (IFP). If you are not a prisoner, you can get this form at either the Clerks Office or at the Courts website (http://www.cand.uscourts.gov/civilforms). If you are a prisoner, there is a different form available online (http://cand.uscourts.gov/prisresources). In both cases, you will have to tell the Court information about your income, your current employment, and your general financial situation. You can find out more information about filing IFP by reading 28 U.S.C. 1915. If you are not a prisoner and the Court finds that you cannot afford to pay the $350.00 fee, the Court will not require you to pay the filing fee in order to proceed with your lawsuit and may waive other costs. Be cautious: the fee waiver does not necessarily mean you will never have to pay. You may still be obligated to pay later on in your lawsuit. If your IFP application is denied, you will be required to pay the fee. If you are a prisoner and you are unable to pay the full filing fee at the time of filing, you must submit: 1. An affidavit that includes a statement of all assets you possess, AND 2. A certified copy of your trust fund account statement (or institutional equivalent) for the six-month period immediately before you file the lawsuit; you may obtain this from the trust account office at each prison at which you have been confined during the six-month period. If the Court determines that you are unable to pay the full filing fee at the time of filing, you will be granted IFP status. Even if you have complied with 1915(a) and the Court has granted you IFP status, if you are a prisoner you will still be required to pay the full amount of the filing fee. Prisoners filing fees are collected through an installment plan: 1. First, the Court will assess and collect an initial partial filing fee; 2. After payment of the initial partial filing fee, you will be required to make monthly payments of 20% of the preceding month's income credited to your account. While the Court can assess the initial fee even if there are no funds in your account at the time of assessment, the Court can only collect this fee when funds exist. Your prison trust account office is responsible for forwarding to the Court payments from your account each time there is more than $10.00 in your account, until the entire filing fee is paid.
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1. one for consenting to have your case decided by a magistrate judge (called Consent to Proceed Before a United States Magistrate Judge) AND 2. one for requesting reassignment of your case to a district judge (called Declination to Proceed Before a Magistrate Judge and Request for Reassignment to a United States District Judge). Understanding the rules for consent assignment to a magistrate judge . . .
It is important that you complete and file with the Court one of these forms indicating whether you consent to have your case decided by a magistrate judge or instead would like your case to be reassigned to a district judge. The magistrate judge may also issue a separate order or send a letter asking you to submit either a consent form or a request for reassignment by a specific date. If you fail to return either form, the Court will assume that you do not consent to having your case decided by a magistrate judge and will eventually reassign the case to a district judge. You should not wait to complete the form, however, as this may delay your case because a magistrate judge cannot rule on most pending motions without the consent of all parties. The federal court Legal Help Centers can help you with this process (see Chapter 2). Even if you consent to having your case decided by a magistrate judge, the case may be reassigned to a district judge if another party to the lawsuit does not consent to magistrate judge jurisdiction. The case may also be reassigned to a district judge if a new plaintiff or defendant is added to the case who does not consent to having a magistrate judge decide the case. You are not required to consent to a magistrate judge. Regardless of whether you consent to have your case decided by a magistrate judge or request reassignment of your case to a district judge, the rules and procedures used to decide the case will be the same. Once a party has consented, however, that party may not later in the case withdraw consent and request reassignment to a district judge. Even if a district judge is the assigned judge in your case, he or she may refer parts of the case, such as discovery disputes (discussed in Chapters 16-17), to a magistrate judge for ruling. Some rulings made by the magistrate judge can be appealed to the district judge. See Chapter 20. A magistrate judge may also be assigned to serve as a settlement judge with the power to set settlement conference dates, order parties to attend settlement conferences, and order the production of documents or other evidence.
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CHAPTER 7 HOW CAN I MAKE SURE THAT I KNOW ABOUT EVERYTHING THAT IS HAPPENING IN MY CASE?
How Do I Review The Docket?
The docket is a computer file maintained by the Court for each case that includes: (1) the names and addresses of all the attorneys and unrepresented parties AND, (2) in chronological order, the title of every document filed along with the filing date, who filed it and other information. To prevent mistakes and to ensure that documents are not lost in the mail, you should check the case docket regularly to ensure that: Every document you filed has been entered on the docket. (It may take up to two working days for a paper filing to be scanned and entered on the electronic docket.) You have received copies of every document that other parties have filed. You are aware of every order that the Court has issued. You may call or email the publicly-listed courtroom deputy for your judge if you have a specific question about your case (such as a question about scheduling). You may call or email the docket clerk with questions about the docket or specific documents filed in the case. DO NOT call the judge, the judges chambers, or the judges other staff.
ELECTRONIC ACCESS TIP: The above format is how your case number will appear on court documents. ECF and PACER will not recognize this format. When typing a case number into ECF or PACER, use numbers only, like this: 02-0001. A short menu showing multiple cases may come up. Choose your case and proceed.
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3. You must register to become a PACER user before you can use any version of the PACER system: Register online at www.pacer.gov/register.html OR call (800) 676-6856 to obtain a PACER registration form by mail. If you provide your credit card information at the time of registration, you will receive an e-mail with instructions on how to retrieve your login information. If you do not provide your credit card information at the time of registration, you will receive login instructions by mail. Please allow two weeks for delivery. 4. PACER Fees There are no registration costs. Internet access to PACER is billed per page of information responding to your query. You will be billed quarterly by the PACER Service Center. The charge for any single document is capped at $3.00, the equivalent of 30 pages. The cap does not apply to name searches, reports that are not case-specific, and transcripts of federal court proceedings. If your usage does not exceed $15.00 in a quarter, fees for that quarter are waived. If your usage exceeds $15.00, you will be charged. An order designated as a written opinion by the judge is free to view. If you also register as an e-filer with the Court's Electronic Case Filing (ECF) system (see Chapter 9), each time a document is e-filed in your case, you will receive a Notice of Electronic Filing e-mail, which will allow you to view the document for free one time. This free look is only for the first time you open the document. Be cautious: you will be charged for subsequent viewings of the document. You should therefore print or save an electronic copy of the document during your initial viewing. The PACER fee information in this Guide changes frequently and is current only as of the publication date on the cover. Refer to PACERs FAQ on fees for the most current information (www.pacer.gov/psc/faq.html). 5. Obtaining a PACER fee exemption If you cannot afford to pay the PACER access fees, you may file a motion with the court asking to be excused from paying the fees. (In forma pauperis status does not automatically grant you free access to PACER). Your motion must show that it would be an unreasonable burden for you to pay the fees and that it would promote public access to electronic court docket information if you were permitted to use the PACER system without paying a fee. If the Court GRANTS your motion, the Clerk's Office will notify the PACER Service Center; you should call the PACER Service Center at (800) 676-6856 to confirm your registration before you begin accessing dockets and documents. If the Court DENIES your motion and you still want to use PACER, you can do so without cost as long as you avoid incurring more than the free maximum usage per quarter. 6. Information available through PACER PACER contains docket information for the Northern District of California for: All civil and miscellaneous cases filed since August 1990; All criminal cases filed since August 1991; AND A small number of cases filed before August 1990. Once case information has been updated in the Northern Districts Electronic Case Filing system, it is immediately available on PACER. 7. PACER Support If you have problems with your PACER account, please call the PACER Service Center at (800) 676-6856. The Court can help you with ECF questions, but cannot help with problems with your PACER account.
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CHAPTER 8 WHAT ARE THE RULES FOR SERVING DOCUMENTS ON THE OTHER PARTIES TO THE LAWSUIT?
You must give the other parties to your lawsuit a copy of every document that you file with the Court. This is referred to as serving or service on the other parties. It is critical that you serve your papers to the other parties in exactly the way the law requires. The rules for serving the complaint are different from the rules for serving other documents. If the complaint is not properly served on the defendant, the case will not proceed and can be dismissed by the Court. About service of the complaint & summons . . .
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What If I Requested A Waiver Of Service And The Defendant Doesnt Send It Back?
If the defendant does not return a signed waiver of service by the due date, you need to arrange to serve that defendant in one of the other ways approved by Rule 4 of the Federal Rules of Civil Procedure. You may ask the Court to order the defendant to pay the costs you incurred serving that defendant.
How Do I Serve . . .
Rule 4(c)(2) provides that YOU MAY NOT SERVE THE DEFENDANT YOURSELF. You must have someone else who is at least 18 years old serve the defendant with the complaint and summons. You may hire a professional process server (process servers are listed in the Yellow Pages and online at www.napps.org/) or you can have a friend, family member, or any other person over 18 years old serve the complaint and summons for you. Following are the rules for serving different kinds of defendants: Individuals in the United States? Under Rule 4(e) of the Federal Rules of Civil Procedure, there are several approved ways to serve the complaint, summons, and related documents on an individual in the United States: Hand delivery to the defendant; OR Hand delivery to another responsible person who lives at the defendants home; OR Hand delivery to an agent authorized by the defendant or by law to receive service of process for the defendant; OR Service by any other method approved by California law or the laws of the state where the defendant is served. California law on service of process can be found in the California Code of Civil Procedure beginning at 413.10. California law generally allows service by: o Hand delivery to the defendant; OR o Hand delivery to someone else at the defendants home or place of business followed by mailing a copy to the defendant at that address (see Cal. Code of Civil Procedure 415.20); OR
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o o
Service by mail accompanied by an acknowledgement of receipt (see Cal. Code of Civil Procedure 415.30); OR Service by publication in a newspaper (subject to the Courts approval; see Cal. Code of Civil Procedure 415.50).
Different service rules apply depending on the type of defendant . . . Individuals in foreign countries? Under Rule 4(f) of the Federal Rules of Civil Procedure, an individual in a foreign country may be served by "any internationally agreed means that is reasonably calculated to give notice," or, if there is none, using methods prescribed by the foreign country's law or government, hand delivery, certified mail delivery or in the manner the Court orders. A business? Under Rule 4(h) of the Federal Rules of Civil Procedure, there are several approved methods for serving the complaint, summons, and related documents on a corporation, partnership, or unincorporated association. A business in the United States: Hand delivery to an officer of the business, a managing or general agent for the business, or any other agent authorized by the defendant to accept service of process; OR Hand delivery to any other agent authorized by law to receive service of process for the defendant AND, if the law authorizing the agent to accept service of process requires it, you must also mail a copy of the summons and complaint to the defendant; OR Any other method approved by California law or the law of the state in which the business is served. Californias laws on serving corporations, partnerships, and unincorporated associations can be found in the California Code of Civil Procedure 416.10 and 416.40. Section 415.40 provides for service on businesses outside California. A business outside the United States, you use any method described in Rule 4(f) except personal delivery.
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The United States, its agencies, corporations, officers, or employees? Rule 4(i) of the Federal Rules of Civil Procedure specifies the approved ways to serve the complaint, summons, and related documents on the United States government or its agencies, corporations, officers, or employees. The United States: Hand delivery to the United States Attorney for the Northern District of California; OR Hand delivery to an assistant United States Attorney (or to a specially-designated clerical employee of the United States Attorney); OR Service by registered or certified mail addressed to the civil process clerk at the office of the United States Attorney for the Northern District of California AND BOTH of the following: Mail a copy of all served documents by registered or certified mail to the Attorney General of the United States in Washington, D.C.; AND If your lawsuit challenges the validity of an order of a United States officer or agency but you have not named that officer or agency as a defendant, also send a copy by registered or certified mail to the officer or agency. A United States agency or corporation (or a United States officer or employee sued only in an official capacity): Serve the United States in the manner described above; AND Send a copy of the summons and complaint by registered or certified mail to the officer, employee, agency, or corporation. A United States officer or employee sued in an individual capacity for conduct in connection with the performance of duties on behalf of the United States: Serve the United States in the manner described above AND Serve the employee or officer personally in the manner set forth by Rule 4(e), (f), or (g) in the Federal Rules of Civil Procedure. A state or local government? Hand delivery to the chief executive officer of the government entity you wish to serve; OR Service according to the law of the state in which the state or local government is located. Minors or incompetent persons? Rule 4(g) of the Federal Rules of Civil Procedure provides that service on a minor or incompetent person in the United States must be made according to the law of the state where the person is served. California law for service of process on minors and incompetent persons can be found at California Code of Civil Procedure 416.60 & 416.70. A foreign country (or a political subdivision, agency, or instrumentality of a foreign country)? Read 28 U.S.C. 1608 for information on serving foreign governmental entities.
For example, if you hired a process server, the certificate of service must be signed by the process server. The person who served the documents must swear under penalty of perjury that the statements in the certificate of service are true. See Federal Rule of Civil Procedure 5(d) and Civil Local Rule 5-6.
What Are The Rules For Service Of Documents Other Than The Complaint?
Rule 5 of the Federal Rules of Civil Procedure sets the rules for serving documents other than the original complaint. If the party you served has a lawyer, then you MUST serve that partys lawyer. If the other party does not have a lawyer, you must serve the party. Rule 5 allows you to serve documents using any ONE of the following methods: Hand it to the person; OR Leave it at the persons office with a clerk or other person in charge, or, if no one is in charge, leave it in a conspicuous place in the office; OR If the person has no office or the office is closed, leave it at the persons home with an adult who lives there; OR Mail a copy to the persons last known address; OR If the person you want to serve has no known address, you may leave a copy with the clerk of the court; OR Send it by e-mail if the person has consented in writing (but electronic service is not effective if you learn that the e-mail did not reach the person to be served); OR Deliver a copy by any other method that the person you are serving has consented to in writing. For every document that you serve on other parties, you need to file a certificate of service.
3. You will not have to go to the courthouse to file your court papers or mail/fax them. 4. You have until midnight on the day your filing is due to e-file (instead of 4:00 p.m. for physical delivery to the Clerk's Office with paper filings). 5. You will not need to serve the other parties with paper copies. Cons: 1. If you do not already have all the hardware and software required to e-file, there may be some initial cost. 2. You may require some training in: a. How to convert documents to .pdf and to work with .pdf documents. b. How to log into and use the ECF system to file documents. Free training on using ECF is available online and in person at the Court. ECF training is highly recommended for all new users. 3. You will not receive documents in paper, so you will be responsible for checking your e-mail every day to make sure you read filings and court orders. You will need to print out all documents yourself. If you need assistance obtaining permission to e-file or have questions about e-filing in general, ask the federal courthouse Legal Help Center. Contact details for the Legal Help Centers are in Chapter 2.
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General Rule
12(a)(1)(A)(i)
If Service Is Waived
Defendants within the United States have 60 DAYS from the date the request for waiver of service was sent to file a response to the complaint. Defendants outside the United States have 90 request for waiver of service was sent.
12(a)(2)
The United States, an agency of the United States, or an officer or employee of the United States sued in an official capacity, must file a written response to the complaint WITHIN 60 DAYS after the United States Attorney is served. Any officer or employee of the United States sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf of the United States must file a written response to the complaint within 60 days after he or she was served, or within 60 days after the United States Attorney is served, whichever is later. A defendant must respond to an amended complaint either:
12(a)(3)
15(a)(3)
1. Within the time remaining to respond to the original complaint, OR 2. Within 14 days after being served with the amended complaint, whichever period is later.
complaint. It should include a numbered response to each numbered paragraph of the plaintiffs complaint. Rule 8(b)(1) of the Federal Rules of Civil Procedure governs answers. A sample answer packet is available on the Courts website at http://cand.uscourts.gov/civillitpackets. There are several requirements to consider: 1. For each sentence in the complaint, state what you admit and what you deny. If you feel that you do not have enough information to determine if a statement is true or false, you can state that in your answer. If only part of a statement is true, you should admit to that part and deny the rest. If you do not deny a statement, it is considered the same as admitting to it. See Rule 8(b)(6) of the Federal Rules of Civil Procedure. 2. Include affirmative defenses, if there are any that apply. Affirmative defenses are new factual allegations that, under legal rules, defeat all or a portion of the plaintiffs claim. Some examples of affirmative defenses include: fraud, illegality, and the statute of limitations. See Rule 8(c) of the Federal Rules of Civil Procedure. As the defendant, you are responsible for raising any affirmative defenses that can help you in the lawsuit. At trial, you will have the burden of proving their truth. Each affirmative defense should be listed in a separate paragraph at the end of the answer. Any affirmative defense not listed in the answer is waived, meaning it cannot be brought up later in the lawsuit. 3. Include a prayer for relief. The prayer for relief states what damages or other relief you believe the Court should award to the plaintiff (usually, the defendant suggests that the plaintiff receive nothing). 4. Sign and date your answer.
Once The Answer Is Filed, Does The Plaintiff Have To File A Response To It?
No. Under Rule 8(b)(6) of the Federal Rules of Civil Procedure, all statements in an answer are automatically denied by the other parties to the lawsuit.
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Once A Counterclaim Is Filed, Does The Plaintiff Have To File A Response To It?
Since a counterclaim is really a complaint against the plaintiff, the plaintiff must file a written response to it. The response to a counterclaim is called a reply. Rule 12(a)(1)(B) requires the plaintiff to file a reply to a counterclaim within 21 days of being served, unless the plaintiff files a motion regarding the reply.
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The defendant may file an answer or may first file a motion, depending on what is in the complaint . . .
b. Once the defendant is served with the amended complaint, he or she must file a written response within the time the Court orders or by the deadline set forth in Rule 15(a)(3). The defendant can either file an answer or file another motion under Rule 12 of the Federal Rules of Civil Procedure. 2. WITH PREJUDICE means there are legal problems with the complaint or individual claim that cannot be fixed. Any claim that is dismissed with prejudice is eliminated permanently from the lawsuit. a. If the Court dismisses the entire complaint with prejudice, then the case is over. b. If some, but not all, claims are dismissed with prejudice, then the defendant must file an answer to the remaining claims, within the time specified in the Courts order.
The defendant should file a response and appear at the hearing if at all possible. The defendant usually opposes a motion for default judgment by challenging the sufficiency of service of the complaint, but can also argue that the facts stated do not amount to a violation of the law or that the amount of damages claimed by the plaintiff is incorrect. In general, the Court will not enter a default judgment if any other alternative exists because it can be very unfair to the defendant.
Here are some specialized motions that are filed at specific phases of a civil case: In connection with filing a complaint: In response to a complaint:
Motion to amend/correct Motion to dismiss Motion for a more definite statement Motion to strike Motion to set aside default judgment Motion to compel deposition/document production/response to interrogatories Motion for a protective order Motion for summary judgment Motion in limine Motion for judgment as a matter of law Motion to set aside the verdict Motion to amend or vacate the judgment
During Discovery:
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3. Reply. The moving party files a reply brief in which it responds only to the arguments made by the opposing partys opposition brief. After this is done, neither party can file any more documents about the motion without first getting permission from the Court. 4. Hearing. After the motion and the briefs are filed, the Court can decide the motion based entirely on the arguments in the papers, or it can hold a hearing. If the Court holds a hearing, each party will be given a chance to talk to the court about the arguments in their papers. The Court then announces its decision in the courtroom or sends the parties a written decision.
ii. The declaration should be made up of numbered paragraphs. iii. You must include the following language at the end of the declaration: If the declaration is being signed in the United Statesit must state: I declare under penalty of perjury that the foregoing is true and correct. Executed on (insert the date the document is signed). If the declaration is being signed outside of the United Statesthe language must read: I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (insert the date the document is signed). iv. The person whose statements are included in the declaration must sign and date it. h. Proposed order. You should include with your motion a proposed order for the Court to sign that spells out what will happen if the Court grants your motion. The first page of the order should include the title: [PROPOSED] ORDER. At the end of the order, you must include a line space for the Courts signature. If the Court grants your motion, it may sign your proposed order or it may write its own order.
extend time that affects a hearing or other proceeding that has already been scheduled on the Courts calendar must be filed no later than 10 days before the scheduled event. You can also file a motion to extend time under Civil Local Rule 6-3. The requirements are similar to those for motions to shorten time.
2. Under the case number, put the title: REPLY BRIEF IN SUPPORT OF [name of motion] and the date and time the moving party has chosen for the hearing. 3. Do not include a notice of motion or a proposed order. 4. The memorandum of points and authorities should discuss only the arguments made in the opposition brief. Do not repeat the arguments you made in the motion, except to the extent necessary to explain why you believe the arguments in the opposition brief are wrong. 5. The reply brief may not include new arguments in support of your motion. (Because the opposing party is not allowed to file a response to a reply brief, it would be unfair to include new arguments.)
What If The Motion Is Urgent And Needs To Be Decided In Less Than 35 Days?
Sometimes a motion raises an urgent issue that needs to be decided very quickly. There are three ways in which to get a hearing date that is less than 35 days from the day your motion is filed. 1. Stipulation to shorten time: Civil Local Rules 6-1(b) and 6-2 state that if both parties agree that the matter should be heard quickly, you may submit a stipulation for the Courts approval. A stipulation is a written agreement signed by all of the parties to the lawsuit or their attorneys. Along with the stipulation, you must also file a declaration (see section on What are the requirements for motion papers?) that: a. Explains why you are requesting that the motion be heard on a faster schedule. b. States all previous schedule changes in the case. c. Describes the effect the proposed schedule change would have on the case. d. Under Civil Local Rule 7-11, a proposed order may be submitted with the stipulation. The proposed order can include a paragraph at the end of the stipulation (after the signatures), stating: PURSUANT TO STIPULATION, IT IS SO ORDERED, with spaces for the date and the signature of the judge. The judge may grant, deny, or modify your request. 2. Motion to shorten time: If the parties cannot agree that the motion is urgent, you can file a motion to shorten time under Civil Local Rule 6-3(a) asking the Court to set a tighter schedule. The motion to shorten time can be no longer than five pages and must be accompanied by a a declaration that: Explains in detail why the motion should be heard on a faster schedule; AND Describes the efforts you have made to get a stipulation from the other parties; AND Identifies the harm to you if the motion is not heard on a faster schedule; AND If relevant, describes your efforts to comply with Civil Local Rule 37-1, which requires parties to negotiate with each other to try to resolve discovery disputes before filing a motion; AND Describes the nature of the dispute addressed in the motion and briefly summarizes the position each party has taken; AND Discloses all previous schedule adjustments in the case; AND Describes the effect the requested schedule adjustments would have on the case. You must deliver a copy of the motion to shorten time, the declaration and a proposed order to all other parties the day the motion is filed (unless the motion is e-filed). The opposition to a motion to shorten time must be filed no later than the third court day after the motion is received, unless the Court sets another schedule. The opposition must be no longer than five pages and must be accompanied by a declaration explaining the basis for the opposition. The objecting party must deliver a copy of its opposition brief to all other parties on the day the opposition is filed (unless the motion is e-filed). There is no reply brief on a motion to shorten time. The Court may grant, deny, or modify the requested time change or schedule the motion for additional briefing or a hearing. It is rare for a hearing to be held on motions of this kind. 3. Ex Parte Motion: An ex parte motion is a motion that is filed without giving notice to the opposing party. You may file an ex parte motion ONLY if a statute, federal rule, local rule, or standing order authorizes the filing of such a motion AND you have complied with all the requirements.
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The judge may ask you questions before your argument and may ask questions throughout your argument. If the judge asks a question, always stop your argument and answer the judges question completely. When you are finished answering the question, you can go back and finish the other points you wanted to make. Always answer the judges questions completely and never interrupt the judge when he or she is speaking. If the judge asks you a question when you are seated at the table or away from the lectern, stand and walk up to the lectern before you answer the question.
CHAPTER 13 INITIAL DISCLOSURES: WHAT ARE THEY AND WHEN DO THEY HAPPEN?
Before the parties begin discovery (the formal process of information exchange governed by certain procedural rules covered in Chapter 16), they are required to hand over to each other certain types of information. This is called an initial disclosure. Federal Rule of Civil Procedure 26(a) lists three types of disclosures which you must provide to the other parties at different times during the course of the lawsuit: initial disclosures, expert disclosures, and pretrial disclosures. Expert disclosures and pretrial disclosures are covered in Chapter 19, What happens at trial? Initial disclosures, covered in detail in Rule 26(a)(1), are required in all civil cases except those listed in Rule 26(a)(1)(B), such as: actions for review of administrative agency action (like social security appeals), petitions for habeas corpus, actions brought by pro se prisoners and actions to enforce arbitration awards. In all other types of cases, you will have to serve initial disclosures on the other parties early in the case. Even though you may not yet have fully investigated the case, you are REQUIRED to make initial disclosures based on the best information available to you. Make sure that you know the date by which you have to serve the initial disclosure. You can download an Initial Disclosures packet at cand.uscourts.gov/civillitpackets.
Must be served within 14 days after your Rule 26(f) meet and confer (which, in turn, normally takes place at least 21 days before your initial case management conference. See Why do I have to meet and confer? in Chapter 15), UNLESS:
Timing
1. Parties stipulate to a different time; OR 2. The Court orders a different time; OR 3. One party objects during the conference that initial disclosures are not appropriate under the
circumstances of the lawsuit, and states the objection in the Rule 26(f) discovery
plan.
Form
Initial disclosures must be in writing, signed and served on all other parties to the lawsuit but not filed with the Court. Your signature certifies that the disclosure is complete and correct as of time it is made, to the best of your knowledge.
1. Name and (if known) address and telephone number of each individual likely to have information that you
may use to support your claims and defenses, unless that information will be used solely for impeachment (information used to attack the credibility of a witness rather than to prove your case);
Required Content
2. Type of information each individual has; 3. Copies or a description by category and location of all documents or other things that you have in your
possession that you might use to support your claims or defenses, unless they will be used solely for impeachment; (you do not need to disclose documents that are privileged or otherwise protected; see Ch. 16);
4. Calculation of damages you claim to have suffered, including all documents that support your calculation 5. Insurance agreements that may cover an award of damages in the lawsuit. 37
CHAPTER 14 WHAT IS A CASE MANAGEMENT (OR STATUS) CONFERENCE AND HOW DO I PREPARE FOR IT?
A case management conference (often called by its abbreviation, CMC) is scheduled upon the filing of every case; its purpose is for the judge and the parties to set a schedule for the case. No issues or claims are decided at the case management conference. A status conference or further case management conference is a subsequent case management conference that the judge holds to check in with the parties about the status of the case. It is a chance for the parties to tell the judge about the progress of their case and any problems they have had in preparing for trial or in meeting the original schedule. See Civil Local Rule 16-10(c). A pretrial conference is held shortly before trial at which the judge and the parties discuss the procedures for the upcoming trial.
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discovery and motion planning or with an informal exchange of key information; and to help with settlement discussions, when requested by the parties. Non-binding Arbitration: In arbitration, the parties present their case to a specially trained lawyer who issues a non-binding decision, called an award. Procedures are less formal than in court, and the goal is to provide the parties with a decision on the merits that is faster and less expensive than trial. The award becomes the final judgment in the case if all parties accept it; otherwise it may serve as a starting point for settlement discussions. The Court encourages using an ADR process in any civil case, at any time. The Courts professional ADR staff, which includes attorneys with expertise in ADR procedures, is available to help you select a suitable option or to customize an ADR procedure to meet your needs. Our ADR processes, which are governed by the Courts ADR Local Rules, are available in every civil case, even if your case is not assigned to the ADRMOP at filing. We have committed substantial resources to our ADR programs because we are confident that litigants who use them can save significant money and time and will often obtain more satisfying results. View and/or download more information, forms or a copy of the ADR handbook or the ADR Local Rules, at www.adr.cand.uscourts.gov.
There are also limits to how many requests you can make, discussed in the following detailed explanations of each method of discovery. Rule 26(b) covers discovery scope and limits in detail.
Depositions
A deposition is a question-and-answer session that takes place outside of Court but is recorded by a court reporter. Rule 30 of the Federal Rules of Civil Procedure covers depositions in detail. One party to a lawsuit asks another person either a party or a witness who is under oath, questions about the issues raised in the lawsuit. The person answering the questions under oath is the deponent. The deponent can be any person who may have information about the lawsuit, including eye witnesses, expert witnesses, or other parties to the lawsuit. A deposition may also be taken by telephone or by means of written questions. At a deposition: 1. The deponent answers all questions under oath, meaning he or she swears that his or her answers are true. 2. The questions and answers of the deposition must be recorded by audio, audio-visual or stenographic means by a court reporter. See Rule 28. 3. The party taking the deposition must pay the cost of recording the deposition. Do I need the Courts permission to take a deposition? Usually, you do not need the Courts permission to take a deposition EXCEPT in the following situations: The deponent is in prison; OR Your side of the lawsuit has already taken 10 other depositions and the other parties have not stipulated that you may take more (refer to Rule 30(a) for more detail); OR The deponent has already been deposed in the same case and the other parties have not stipulated in writing that the deponent may be deposed again; OR You want to take a deposition before the parties have their Rule 26(f) meet and confer and the other parties will not agree to let you take the early deposition. A motion is not required if the deponent is expected to leave the United States and therefore will be unavailable for deposition after the Rule 26(f) meeting. How do I arrange a deposition? Under Civil Local Rule 30-1: 1. Consult with opposing counsel to choose a convenient time for the deposition. The convenience of the lawyers, the parties, and the witnesses must be taken into account, if possible. 2. Pick a convenient time for the deposition and give written notice of the deposition to the deponent. This document is known as the notice of deposition. 3. Serve the notice of deposition on all parties. What do I include in a notice of deposition? Under Rule 30(b) and 26(g)(2) of the Federal Rules of Civil Procedure, the notice of deposition must include: 1. The time and place where the deposition will be held; AND 2. The name and address of the deponent (if this is not known, the deponent must be described well enough so that he or she can be identified by the other side; for example, the store manager who was on duty after 6:00 pm); AND 3. If you name a business or government agency as a deponent, then it must tell you the name of the person who will testify on its behalf; AND 4. The method by which the deposition will be recorded; AND 5. Your address and signature pursuant to Rule 26(g)(2). When do I need to use a subpoena for a deposition? Under Rule 45 of the Federal Rules of Civil Procedure: You DO NOT need a subpoena to depose someone who is a party to the lawsuit.
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Only deponents who are not parties to the lawsuit (non-party deponents or non-party witnesses) must be served with a subpoena to compel their attendance. You can get a blank subpoena from the Clerks Office for any deposition that will take place in the Northern District of California. For depositions taken outside of the Northern District of California, a subpoena from the federal district court where the deposition will be taken is required. A subpoena may be served (hand-delivered) on the deponent by any person who is not a party to the lawsuit and who is at least 18 years of age. A subpoena must be hand-delivered to the deponent along with the fees for one days attendance and mileage allowance required by law. You must pay for a non-party deponents travel expenses under 28 U.S.C. 1821 and 41 C.F.R. 30110.303. What does it mean if the deponent files a motion for the Court to quash the subpoena? To quash a subpoena is to issue an order that the person does not have to obey the subpoena or appear at the deposition. The Court may quash a subpoena if there is undue burden or expense required for the deponent to appear at the deposition. The Court must quash a subpoena if it requires a non-party deponent to travel more than 100 miles to the deposition. See Rule 45(c)(1). Ive been served with a deposition subpoena; what do I do? The other party will set a date, time, and place for your deposition and send you this information in a deposition notice or subpoena. As a party to a lawsuit, you are required to appear at a deposition in response to either a deposition notice or subpoena. If the other side has set a date that is inconvenient for you, it is important that you contact them right away and suggest another date for the deposition. It is usually best to send a letter or email confirming any agreement that you reach with the other side in order to avoid later misunderstandings. What can I do to prepare to have my deposition taken? Depositions are very important because the transcript of your answers can be submitted as evidence to the Court. Answers you give in a deposition can have the same effect as if you had given those answers under oath in front of the judge. Here are some practical tips for helping your deposition go smoothly: Review documents beforehand. Before the deposition, the deponent can better remember events and answer questions about them by reviewing the documents exchanged during initial disclosures and discovery. If asked what you did to prepare, be prepared to state what you reviewed. Ask for unclear or confusing questions to be restated or clarified. During the deposition, it is acceptable for the deponent to ask for clarification before attempting to answer a question. Focus on answering the questions asked. Depositions go more smoothly when the deponent stays focused on the questions asked. If the questioner wants more information, he/she will ask another question. Use the opportunity provided at the end to put additional important information on the record. There may be information that the deponent thinks is important that did not come up in the question-andanswer portion of the deposition. At the end of the deposition, the deponent can state that information and ask the court reporter to write it down in the deposition transcript. What is a subpoena duces tecum and why would I need one? A subpoena duces tecum is a court order requiring someone to provide copies of papers, books or other things. It is a discovery tool that can be used with a deposition or by itself. Under Rule 30(b)(1), the documents you want the deponent to bring to the deposition must be listed in both the notice of deposition and the subpoena duces tecum. How long can a deposition last? Under Rule 30(d)(2) of the Federal Rules of Civil Procedure, a deposition may last no longer than seven hours, unless more time is authorized by all parties or the Court.
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Does the deponent have to answer all questions? Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, you may ask questions about any nonprivileged matter that is relevant to the claim or defense of any party and appears reasonably likely to lead to the discovery of admissible evidence. Under Rule 30(c), the deponent is entitled to state any legal objections he or she has to any question. Certain types of objections are considered proper, such as: The question is vague; The question is actually a series of questions all together (a "compound question"); The question is argumentative; The question asks for information that you are not legally able to give. In most of these cases, however, the deponent must still answer the question, after making the objection. Under Rule 30(d)(1), the deponent may refuse to answer a question only when: Answering would violate a confidentiality privilege such as the attorney-client or doctor-patient privilege; OR The Court has already ordered that the question does not have to be answered; OR The deposition has been stopped in order for the deponent or a party to make a motion to the Court on the grounds that the deposition is being conducted in bad faith or in an unreasonable manner or meant to annoy, embarrass, or oppress the deponent or party. See Rule 30(d)(3). Who is allowed to ask the deponent questions? Any party may ask questions at the deposition. Can the deponent change his or her deposition testimony after the deposition? Under Rule 30(e) of the Federal Rules of Civil Procedure, the deponent has 30 days from the time the deposition transcript is complete to review the deposition and make changes. The deponent must sign a statement listing the changes and the reasons for making them.
Interrogatories
Interrogatories are written questions sent by one party to any other party to the lawsuit and must be answered in writing and under oath. Rule 33 of the Federal Rules of Civil Procedure covers interrogatories in detail. Do I need the Courts permission to serve interrogatories? Under Rule 33(a), you may serve up to 25 interrogatories, including all subparts, on the same party without the Courts permission. If you want to serve more than 25 on one party, you must file a motion asking the Courts permission. See Civil Local Rule 33-3. What kinds of questions can I ask? Consistent with Rule 26(b)(1) of the Federal Rules of Civil Procedure, parties may use interrogatories to ask about any non-privileged matter that is relevant to any partys claim or defense. Are there any requirements for the form of interrogatories? Usually each interrogatory is written out with a separate number. Interrogatories must be signed in accordance with Rule 26(g)(2). How do I answer interrogatories? The interrogatories must be answered within 30 days. As the responding party, you can either answer the question, object, or both. When answering a question, a party must answer with all available information. This means information a party can remember without doing research, but if the information exists within your business records or other files, then you must look for the answer. If the burden of finding the answer is the same for you as for the party who served the interrogatory, then you may answer the interrogatory by simply telling the other side where the answer can be
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found. The burden then falls to the other party to find the answer. You must be specific; you cannot just say, In the documents I gave you. If you need more than 30 days to answer, you can request more time from the other party. If the other party refuses, you can file a motion with the Court. Each interrogatory must be answered separately and fully in writing under oath, unless objected to. If you object to only part of a question, then you must answer the rest of the question. Any objections must be stated in writing and include the reasons for the objection. The objections should be signed by the partys lawyer, unless the party does not have a lawyer. Answers must be signed by the party whether or not the party has a lawyer. It is not appropriate to answer I dont know if the answer is available to you. If you learn later that your answer is incomplete or incorrect, you must let the other side know by supplementing your original answer. See Rule 26(e)(2).
How do I get documents from persons who are not parties? Rules 34(c) and 45 cover obtaining documents from persons not party to the lawsuit. Under Rule 34(c), you can ask the Court to compel a person who is not a party to the lawsuit to produce documents and items or submit to an inspection. Rule 45 sets out the rules for issuing, serving, protesting, and responding to subpoenas, including subpoenas duces tecum, subpoenas requesting the production of documents and items. The same form is used both for a subpoena duces tecum and a deposition subpoena. If you want a nonparty to produce documents at deposition, you can fill out just one subpoena form directing the person to appear at the deposition and to bring along specific documents to the deposition. You can also serve a deposition subpoena and a subpoena duces tecum separately so that the deponent will appear for a deposition at one time and produce documents at a different time. You can get a blank subpoena form from the Clerks Office for any production of documents or inspection that will occur in the Northern District of California. If the document or item is located outside our district, you will need to get the subpoena from the Court in the corresponding district. A subpoena duces tecum may be served by any of the methods listed in Rule 5(b), including service by mail. You must take steps to avoid imposing an undue burden or expense on the person receiving the subpoena. See Rules 45(b)(1)&(c)(1) of the Federal Rules of Civil Procedure. What kind of response can I expect if I serve a subpoena duces tecum? The person who has been served with a subpoena duces tecum has 14 days to serve written objections (less if the time required for production or inspection is less than 14 days). If an objection is made, the parties should meet and confer to try to resolve the issue. If the objection cannot be resolved through agreement, the party serving the subpoena will need to seek a court order before being allowed to inspect or copy any of the materials requested in the subpoena. Rule 45(c)(2)(B). The person served with the subpoena duces tecum does not have to appear in person at the time and place for the production of documents for inspection unless he or she also has been subpoenaed to appear for a deposition, hearing, or trial at the same time or place. Rule 45(c)(2)(A).
How do I respond to a request for admission? 1. Your answer must admit or deny the request or explain in detail why you cannot admit or deny the request truthfully. 2. If you can only admit or deny part of the request, then you must admit or deny that part and then explain why you cannot admit or deny the other part of the request. 3. If you do not know the answer, then you may state that you do not have enough information to admit or deny the requested information but only after you have made a reasonable search for information that would allow you to admit or deny the request. 4. Any matter that is admitted is treated as proven within the context of that particular lawsuit. But an admission in one lawsuit cannot be used against that party in any other proceeding. What if I do not want to admit to the truth of a request for admission? If a party fails to admit to a fact which is later proven true, the requesting party may file a motion with the Court seeking compensation in the form of expenses, including attorney fees, that were accrued in the process of proving that fact. See Rule 37(c)(2) of the Federal Rules of Civil Procedure. The Court MUST grant the motion unless it finds that: The request was objectionable under Rule 36(a); OR The admissions were not important; OR The party who did not admit the fact had reasonable ground to believe that it might prevail on that point; OR There were other good reasons for the failure to admit. Duty to supplement responses If a party discovers that the responses that party has already submitted are incomplete or incorrect, then that party is required under Rule 26(e)(2) of the Federal Rules of Civil Procedure to supplement the earlier responses promptly.
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What If The Parties Cant Resolve The Problem And Discovery Is Still Due?
If you receive a discovery request and you believe it is inappropriate or too burdensome, you may file a motion for a protective order under Rule 26(c) of the Federal Rules of Civil Procedure. A protective order is an order limiting discovery or requiring discovery to proceed in a certain way. A motion for a protective order must be filed in either the court where the lawsuit is being heard or in the federal district court in the district where a deposition in which an issue arises is being taken. A motion for a protective order MUST include: 1. A certification that you have tried to confer in good faith with the other parties to resolve the dispute without help from the Court; AND 2. An explanation of the dispute and what you want the Court to do; AND 3. An explanation of the facts and law that make it appropriate for the Court to grant your motion.
What If The Parties Are Stuck On A Problem In The Middle Of A Discovery Event?
A discovery event is any activity in which the parties meet to exchange discovery information. If a problem arises during a discovery event and you believe it would save a lot of time or expense if the problem were resolved immediately, Civil Local Rule 37-1(b) allows you to call the chambers of the judge who is assigned to handle discovery in your case to request that he or she address the problem through a telephone conference with the parties. This may be the district judge or it may be a magistrate judge to whom the district judge has referred discovery in your case. Before calling the judges chambers, though, you must first try to resolve the problem on your own.
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1. Be made by someone who has personal knowledge of the facts contained in the written statement (this means first-hand knowledge such as observing the events in question); AND 2. State facts that are admissible in evidence; AND 3. Show that the person making the statement is competent to testify to the facts contained in the statement. Download blank declaration forms and a motion packet at cand.uscourts.gov/civillitpackets.
What Is Hearsay?
A declaration or affidavit based on hearsay is not admissible in federal court. Hearsay is second-hand evidence or a witnesss statement about a fact that is based on something the witness heard from someone else. See Rules 801-807 of the Federal Rules of Evidence.
What If My Opponent Files A Summary Judgment Motion But I Need More Discovery To Oppose It?
If you need more discovery in order to provide more evidence to the Court showing why summary judgment should not be granted, you can file, on or before the deadline for opposing the motion, a request under Rule 56(d) of the Federal Rules of Civil Procedure for additional time to conduct discovery. Your request must be accompanied by an affidavit or declaration clearly setting out the reasons why you do not already have the evidence you need to defeat summary judgment and explaining exactly what additional discovery you need to take. You must also show how that discovery matters to the pending motion for summary judgment.
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Timing
Content
Form
Duty to Supplement
Expert disclosures must be in writing, signed and served on all other parties to the lawsuit, but not filed with the Court. Your signature certifies that the disclosure is complete and correct as of time it is made, to the best of your knowledge. Rule 26(e)(1) requires you to supplement your expert disclosures if you learn that the information you disclosed is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. Any supplement to your expert disclosures must be served no later than the time your pretrial disclosures under Rule 26(a)(3) (discussed below) are due.
2. Pretrial Disclosures: Witness & Exhibit Lists At least 30 DAYS before trial, you are required to disclose certain information about witnesses and evidence that you will present at trial. See Rule 26(a)(3). Timing
Witness and exhibit lists should be served on all parties and filed with the Court at least 30 days before trial, unless otherwise ordered by the Court.
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The following information about the witnesses, documents and other exhibits you may use at trial should be included in your pretrial disclosures: 1. Name, address, and telephone number of each witness. Identify separately: a. The witnesses you intend to present at trial, AND b. The witnesses you might present at trial, if the need arises. 2. The identities of the witnesses whose testimony you expect to present at trial by means of a deposition rather than live testimony. Can also include a transcript of the relevant portions of the deposition. 3. Identification of each document or exhibit that you may use at trial. Identify separately: a. The exhibits you intend to use at trial, AND b. Those which you might use if the need arises. 4. Witnesses and documents offered only to impeach the other sides witnesses need not be disclosed. Pretrial disclosures must be in writing, signed and served on all other parties to the lawsuit and filed with the Court. Your signature certifies that the disclosure is complete and correct as of time it is made, to the best of your knowledge.
Content
Form
Timeline of a trial:
Jury Selection
The goal of jury selection is to select a jury that can serve for the whole trial and be fair and impartial through a process called voir dire, during which potential jurors are questioned by the attorneys and the judge. The questions are designed to bring out any biases that the juror may have that would prevent fair and impartial service on that jury. Sometimes the judge lets the lawyers for each party (or any party who does not have a lawyer) ask additional questions. There are three ways a potential juror can be excused: 1. Once questioning is completed, the judge will excuse those potential jurors whom the judge believes will not be able to perform their duties as jurors because of financial or personal hardship or other reasons. 2. Challenge for cause: The parties will then have an opportunity to convince the judge that other potential jurors should be excused because they are too biased to be fair, or cannot perform their duties as jurors for other reasons. 3. Peremptory challenges: After all the potential jurors that have been challenged for cause have been excused, the parties have an opportunity to use peremptory challenges to dismiss a limited number of additional jurors without having to give any reason. After the jury is chosen, the judge will read general instructions to the jury about their duties as jurors, how to deal with evidence, and about the law that applies to the lawsuit that they are about to hear.
Opening Statements
In opening statements, each party describes the issues in the case and state what they expect to prove during the trial. It helps the jury understand what to expect and what each side considers important. The opening statements must not mention any evidence or issues that the judge has excluded from the trial.
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What Is A Motion For Judgment As A Matter Of Law, And When Can It Be Made?
Under Rule 50(a) of the Federal Rules of Civil Procedure, in a jury trial either party may make a motion for judgment as a matter of law after the plaintiff has presented all of his or her evidence. A motion for judgment as a matter of law asks the judge to decide the outcome of the case without assistance from the jury because either: The plaintiff has proven enough facts to be entitled to judgment no matter what evidence the defendant is able to bring (plaintiff's motion) OR All of plaintiff's evidence, even if true, could not persuade a reasonable jury to decide in the plaintiffs favor (defendant's motion).
What Is Rebuttal?
Rebuttal is the final stage of presenting evidence at trial. It begins after both sides have had a chance to present their cases. In the rebuttal stage, whichever party has the burden of proof (usually the plaintiff) tries
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to attack or explain the opposing partys evidence. This evidence is called rebuttal evidence. Rebuttal is limited to countering only what the other side argued as evidence; entirely new arguments may not be made during rebuttal. For example, a rebuttal witness might testify that the other partys witness could not have seen the events he reported to the Court. So, after the defendant has finished examining each of his or her witnesses, the plaintiff may call a new witness to show that one of those witnesses was not telling the truth.
What Happens After Both Sides Have Finished Presenting Their Evidence?
After all evidence has been presented, either party may make a motion for judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure. See "What Is A Motion For Judgment As A Matter Of Law, And When Can It Be Made?" above. If the Court grants a motion for judgment as a matter of law on all of the claims in the case, the trial is over. Otherwise, the Court next hears closing arguments. Each party may present a closing argument that summarizes the evidence and argues how the jury or, in a bench trial, the judge should decide the case based on that evidence. In jury trials, the judge then instructs the jury about the law and the jurys duties, and then the jury goes into the jury room to deliberate.
Important new facts have emerged or a significant change in the law has occurred since the order was entered; OR The Court clearly failed to consider material facts or key legal arguments that were presented to the Court before the order was issued. A motion for permission to file a motion for reconsideration may not simply repeat arguments made previously to the Court. If you file such a motion, the Court may impose sanctions on you. No response needs to be filed to a motion for permission to file a motion for reconsideration unless the Court requests it. If the Court grants a motion for permission to file a motion for reconsideration, the motion will be scheduled for hearing on the normal 35-day motion schedule, unless the Court sets a different schedule. The parties may file opposition and reply briefs, as with any other motion. If the Court grants a motion for reconsideration, it will vacate the original order, which will have no further effect. The Court either will issue an entirely new order or an amended version of the original order.
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Motion To Amend Or Alter The Judgment Either party can also file a motion to amend or alter the judgment. A motion to amend or alter the judgment asks the judge to change something in the final judgment because of errors during the trial. It is usually granted if: The Court is presented with newly discovered evidence; OR Has committed clear error; OR If there is an intervening change in the controlling law. Both types of motions must be filed no later than 10 days after entry of the judgment. See Rule 59 of the Federal Rules of Civil Procedure. Motion For Relief From Judgment Or Order A motion for relief from judgment or order under Rule 60 of the Federal Rules of Civil Procedure does not argue with the Court's decision. Instead, it asks the Court not to require the party to obey it. Rule 60(a) allows the Court to correct clerical errors in judgments and orders at any time, on its own initiative, or as the result of a motion filed by one of the parties. This authority is usually viewed as limited to very minor errors, such as typos. If an appeal has already been docketed in the Court of Appeals, the error may be corrected only by obtaining permission from the Court of Appeals. Rule 60(b), however, permits any party to file a motion for relief from a judgment or order for any of the following reasons: Mistake, inadvertence, surprise, or excusable neglect; OR Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); OR Fraud, misrepresentation, or other misconduct by an opposing party; OR The judgment is void; OR The judgment has been satisfied, released, or discharged, or a prior judgment upon which it has been based has been reversed or otherwise vacated, or it is no longer fair that the judgment should be applied; OR Any other reason justifying relief from the judgment. Relief will be granted under this last category only under extraordinary circumstances. A motion based on the first three reasons must be made within one year after the judgment or order was entered. A motion based on the other three reasons must be made within a reasonable time.
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GLOSSARY
ACTION ADMISSIBLE EVIDENCE AFFIRMATIVE DEFENSES ADR (ALTERNATIVE DISPUTE RESOLUTION) ADR CERTIFICATION ADJOURN, ADJOURNMENT AFFIDAVIT AFFIRMATIVE DEFENSES ALLEGATION AMEND (A DOCUMENT) AMENDED PLEADING (COMPLAINT OR ANSWER) AMOUNT IN CONTROVERSY ANSWER APPEAL APPLICATION TO PROCEED IN FORMA PAUPERIS( (IFP) ARBITRATION ARBITRATOR AWARD BENCH BENCH TRIAL BREACH BRIEF BURDEN OF PROOF CAPTION CAPTION PAGE CASE CASE FILE
Another term for lawsuit or case. Evidence that can, under the Federal Rules of Evidence, properly be introduced at trial for the judge or jury to consider in reaching a decision; the Federal Rules of Evidence govern the admissibility of evidence in federal court. New factual allegations included in the answer that, under legal rules, defeat all or a portion of the plaintiffs claim. A Court-sponsored program offering methods by which a complaint can be resolved outside of traditional court proceedings. The Northern Districts ADR Multi-Option Program (ADRMOP) uses four ADR processes: (1) arbitration; (2) early neutral evaluation; (3) mediation; and (4) settlement conference. A form you are required to sign, serve, and file with the Court affirming that you have read the Courts ADR handbook, discussed ADR options with the other parties, and considered whether your case might benefit from any form of alternative dispute resolution. To bring a proceeding to an end, such as a court calendar or trial. A statement of fact written by a witness, which the witness swears before a notary public. New factual allegations included in an answer that, under legal rules, defeat all or a portion of the plaintiffs claim. An assertion of fact in a complaint or other pleading. To alter or change a document that has been filed with the Court, such as a complaint or answer, by filing and serving a revised version of that document. Certain documents cannot be amended without prior approval of the Court. A revised version of the original complaint or answer that has been filed with the Court. The dollar value of how much the plaintiff is asking for in the complaint. The written response to a complaint. An answer on the merits challenges the complaints factual accuracy. To seek formal review of a district court judgment by the Court of Appeals. A form filed by the plaintiff asking permission to file the complaint without paying the required fee due to inability to pay. A form of alternative dispute resolution, overseen by a judge or arbitrator, in which the parties argue their positions in a trial-like setting that lacks some of the formalities of a full trial. The neutral third party who presides at arbitration, usually an attorney. The sum of money or other relief to which an arbitrator rules the winning party in an arbitration is entitled. The large desk located at the front of the courtroom where the judge sits. A trial (also known as a court trial) in which the judge, rather than the jury, determines the law, the facts, and the verdict of the lawsuit. Failure to perform a legal obligation. A document filed with the Court arguing for or against a motion. Under legal rules, one party or the other bears responsibility for proving or disproving one or more elements of a claim. What must be proven or disproven is the burden of proof. A formatted heading on the first page of every document filed with the Court, listing the parties, the name of the case, and other identifying information. The specific information that must be included in the caption is explained in Rule 10(a) of the Federal Rules of Civil Procedure and this Courts Civil Local Rule 3-4. The cover page of the document containing the caption. It is always the first page of any document a party to a lawsuit files with the Court. Another term for lawsuit or action. A file in which the original of every document manually filed with the Court is kept. E-filed documents are generally not placed in the case file.
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A court proceeding at which the judge, with the help of the parties, sets a schedule for various events in the case. The Courts written order scheduling certain events in the case. A statement filed by the parties providing information to be discussed at the case management conference. A document showing that a copy of a particular documentfor example, notice of motionhas been mailed or otherwise provided to (in other words, served on) all of the other parties in the lawsuit. A request by a party that the Court excuse a juror whom they believe to be too biased to be fair and impartial, or unable perform their duties as jurors for other reasons. The private offices of an individual judge and the judges chambers staff usually an administrative assistant and law clerks. A copy of a document filed either manually or electronically with the Court for the judges use. A reference to a law, rule, or case. A statement made in a complaint, in which the plaintiff(s) argue that the defendant(s) violated the law in a specific way; sometimes called a count. An oral statement by each party summarizing the evidence and arguing how the jury (or, in a bench trial, the judge) should decide the case. A legal document in which the plaintiff tells the Court and the defendant how and why the defendant violated the law in a way that has caused harm to the plaintiff. A claim by the defendant against the plaintiff that is based on the same events or transactions as the plaintiffs claim against the defendant. Acts found by the Court to be committed in willful violation of the Courts authority or dignity, or to interfere with or obstruct its administration of justice. A court-granted extension of time. Attorney(s); lawyer(s). Sometimes used instead of claim. A defendants complaint against the plaintiff, filed in the plaintiffs case. A court that hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. This Courts decisions are appealed to the Ninth Circuit Court of Appeals. A person specially trained and licensed to record testimony in the courtroom or, in the case of depositions, another location. A Court employee who assists the judge in the courtroom and usually sits at a desk in front of the judge. A trial (also known as a bench trial) in which the judge, rather than the jury, determines the law, the facts, and the verdict of the lawsuit. A new claim bringing a new party into the case or asserting a claim against a co-party (by a plaintiff against a co-plaintiff or by a defendant against a co-defendant). The opposing partys questioning of a witness following direct examination. This is limited to the topics covered during the direct examination. The money that can be recovered in the courts by the plaintiff for the plaintiffs loss or injury due to the defendants violation of the law. The process in which the jury discusses the case in private and makes a decision about the verdict. See also jury deliberations. A Courts complete review and re-determination the matter before it from the beginning; for example, a referring judges de novo review of a magistrate judges report and recommendation includes considering the same evidence reviewed by the magistrate judge and reaching an independent conclusion.
CERTIFICATE OF SERVICE CHALLENGE FOR CAUSE CHAMBERS CHAMBERS COPY CITATION CLAIM CLOSING ARGUMENTS COMPLAINT COMPULSORY COUNTERCLAIM CONTEMPT OF COURT CONTINUANCE COUNSEL COUNT COUNTERCLAIM COURT OF APPEALS COURT REPORTER OR
STENOGRAPHER
COURTROOM DEPUTY COURT TRIAL CROSSCLAIM CROSS-EXAMINATION DAMAGES DELIBERATE DE NOVO REVIEW
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DECLARATION DEFAULT DEFAULT JUDGMENT DEFENDANT DEFENDANTS TABLE DEFENSES DEPONENT DEPOSITION DEPOSITION NOTICE DEPOSITION SUBPOENA DIRECT EXAMINATION DISCLOSURES DISCOVERY DISCOVERY PLAN DISTRICT JUDGE DIVERSITY JURISDICTION DIVISION DOCKET DOCKET CLERK DROP BOX EARLY NEUTRAL EVALUATION ELECTRONIC CASE FILING (ECF) ECF HELPDESK ELEMENT (OF A CLAIM OR DEFENSE) ENTRY OF DEFAULT
A written statement signed under penalty of perjury by a person who has personal knowledge that what he or she states is true; declarations may contain only facts, and may not contain law or argument. The person who signs a declaration is called a declarant. A defendants failure to file an answer or other response within the required amount of time, after being properly served with the complaint. A judgment entered against a defendant who fails to respond to the complaint. The person, company or government agency against whom the plaintiff makes claims in the complaint. The table where the defendant sits, usually the one further from the jury box. The reasons given by the defendant why the plaintiffs claims should be dismissed. The person who answers the questions in a deposition; a deponent can be any person who may have information about the lawsuit, including one of the other parties to the lawsuit. A question-and-answer session, before trial and outside the courtroom, in which one party to the lawsuit asks another person, who is under oath, questions about the events and issues in the lawsuit. The process of taking a deposition is called deposing. A notice served on the deponent specifying the time and place of the deposition. See subpoena. The process during a trial in which a party calls witnesses to the witness stand and asks them questions. Information that each party must automatically give the other parties in a lawsuit even. The formal process by which a party to a lawsuit asks other people to provide information about the events and issues in the case. The joint proposed discovery plan required by Rule 26(a) of the Federal Rules of Civil Procedure, which must include the parties views about, and proposals for, how discovery should proceed in the lawsuit. A federal judge who is nominated by the President of the United States and confirmed by the United States Senate to a lifetime appointment. A basis for federal court jurisdiction in lawsuits in which none of the plaintiffs live in the same state as any of the defendants and the amount in controversy exceeds $75,000. The Northern District of California has several divisions among which the Court's caseload is divided: San Francisco, Oakland, San Jose and Eureka. The computer file for each case, maintained by the Court, listing the title of every document filed, the date of filing and docketing of each document and other information. Also known as "case systems administrator," a court staff member who enters documents and case information into the court docket. A secure depository where documents can be left for filing by the Clerk of Court when the Clerks Office is closed to the public. An ADR process in which a specially-trained lawyer who is an expert in the subject matter of the case provides the parties with a non-binding assessment of the merits, and may also help with settlement discussions. Also known as "e-filing," the process of submitting documents to the Court for filing and serving them on other parties electronically through the internet. The United States Courts use an efiling system called "Electronic Case Filing" or "ECF." A court staff member with ECF expertise who helps ECF users with technical problems (by phone or email). An essential component of a legal claim or defense. A formal action taken by the Clerk of Court in response to a plaintiffs request when a defendant has not responded to a properly-served complaint; the Clerk must enter default against the defendant before the plaintiff may file a motion for default judgment.
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EVIDENCE EX PARTE MOTION EX PARTE EXHIBITS EXPERT DISCLOSURES EXPERT REPORT EXPERT WITNESS FEDERAL QUESTION JURISDICTION FEDERAL RULES OF CIVIL PROCEDURE FEDERAL RULES OF EVIDENCE FILING FILING FEE FINDINGS OF FACT AND
CONCLUSIONS OF LAW
Testimony, documents, recordings, photographs and physical objects that tend to establish the truth of important facts in a case. A motion that is filed without notice to the opposing party. Without notice to the other parties and without their being present (as in a written or telephone communication with the Court). Documents or other materials that are presented as evidence at trial or as attachments to motions or declarations. The disclosures required by Rule 26(a)(2) to the other parties of the identity of, and additional information about, any expert witnesses who will testify at trial. A written report signed by an expert witness that must accompany the expert disclosures for any expert witness; Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure lists what must be included in an expert report. A person who has scientific, technical, or other specialized knowledge that can help the Court or the jury understand the evidence. Federal courts are authorized to hear lawsuits in which at least one of the plaintiffs claims arises under the Constitution, laws, or treaties of the United States. The procedural rules that apply to every federal district court in the United States. The rules for submitting, considering and admitting evidence in the federal courts. The process by which documents are submitted to the Court and entered into the case docket. The amount of money the Court charges to process and file a document. A statement issued by a judge explaining what facts he or she has found to be true and the legal consequences to be included in the judgment; it concludes a bench trial once all evidence has been submitted and all arguments have been presented. A false representation of a past or present fact by a person, on which another person or persons rely, resulting in their injury. Having honesty of intention; for example, negotiating in good faith would be to come to the table with an open mind and a sincere desire to reach an agreement. The reason or reasons for requesting action by the Court. A formal proceeding before the judge for the purpose of resolving some issue; hearings are typically open to the public and held in a courtroom. A statement made by someone other than the witness, offered to prove the truth of the matter asserted in the statement. To call into question a witness truthfulness. See application to proceed in forma pauperis. Representing oneself; Latin for "in his or her own person." The disclosures that the parties are required to serve within 14 days of their initial case management conference. Court orders issued before judgment. Written questions served on another party in the lawsuit, which must be answered (or objected to) in writing and under oath. The assignment by the Clerks Office of a lawsuit to one of the Court's divisions (San Francisco, Oakland, San Jose or Eureka) under Civil Local Rule 3-4(b). What the Clerk of Court must do before a summons is valid for service on a defendant. A court-approved form the parties are asked to complete jointly and file before the initial case management conference.
FRAUD GOOD FAITH GROUNDS HEARING HEARSAY IMPEACHMENT IN FORMA PAUPERIS (IFP)
IN PROPRIA PERSONA
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JUDGMENT JURISDICTION JURY BOX JURY DELIBERATIONS JURY INSTRUCTIONS JURY SELECTION JURY TRIAL LAW LIBRARY LECTERN LITIGANTS LOCAL RULES
A final document issued by the Court stating which party wins on each claim. Unless there are post-judgment motions, the entry of judgment closes the case. See diversity jurisdiction and subject matter jurisdiction. The two rows of seats, usually located against a side wall in a courtroom and separated from the well of the courtroom by a divider, where the jury sits during a trial. The process in which the jury, after having heard all the evidence, closing arguments from the parties, and instructions from the judge, meets in private to decide the case. The judges directions to the jury about its duties, the law that applies to the lawsuit, and how it should evaluate the evidence. The process by which the individual members of the jury are chosen. A trial in which a jury weighs the evidence and determines what happened; the Court instructs the jury on the law, and the jury applies the law to the facts and determines who wins the lawsuit. A special library containing only legal materials, usually staffed by a specially-trained librarian. The stand for holding papers in front of the bench in the courtroom where an attorney or pro se party making arguments on a motion stands and speaks to the judge. The parties to a lawsuit. Specific federal court rules that set forth additional requirements to the Federal Rules of Civil Procedure; for example, the Local Rules of the United States District Court for the Northern District of California explain some of the additional procedures that apply only to this Court. A judicial officer who is appointed by the Court for an 8-year, renewable term and has some, but not all, of the powers of a district judge. A magistrate judge may handle civil cases from start to finish if all parties consent. In non-consent cases, a magistrate judge may hear motions and other pretrial matters assigned by a district judge. A filing of a paper document at the Clerk's Office instead of by electronic filing/e-fling. A fact that must be proven to establish and element of a claim or defense in the lawsuit. An ADR process in which a trained mediator helps the parties talk through the issues in the case to seek a negotiated resolution of all or part of the dispute. The parties meeting and working together to resolve specific issues under Court rules or a Court order. The part of a motion that contains the arguments and the supporting law to persuade the Court to grant motion; also referred to as a brief. See physical or mental examination. A formal application to the Court asking for a specific ruling or order (such as dismissal of the plaintiffs lawsuit). Defendant argues that the complaint is so vague, ambiguous, or confusing that he or she cannot respond to it, and asks for additional details. Argues that another trial should be held because of a deficiency in the current trial. A motion which asks the Court to relieve a party of the obligation to respond to a discovery request or grant more time to respond. A motion asking the Court to grant judgment in favor of the plaintiff because the defendant failed to file an answer to the Complaint. If the court grants the motion, the plaintiff has won the case. A motion arguing that the opposing partys evidence is so legally deficient that no jury could reasonably decide the case in favor of that party. The defendant may bring such a motion after the plaintiff has presented all evidence, and after all the evidence has been presented, either party may bring such a motion; if the Court grants the motion, the case is over.
MAGISTRATE JUDGE
MANUAL FILING
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A party must ask the Court for permission to file such a motion, which asks the Court basically to change its mind. A pro se party to a suit must file this motion and the judge must grant it before that party will be permitted to register for Electronic Case Filing (ECF)/e-filing. Asks the Court to consider changing a previous decision; cannot be filed without the permission of the Court. Asks the Court to rule that a judgment or order should not be given effect or should be changed for one of the reasons permitted by Rule 60(b) of the Federal Rules of Civil Procedure. Asks the Court to impose a penalty on a party; for example, in the context of discovery, a motion for sanctions asks the Court to punish a person for failing to make required disclosures, refusing to respond to a discovery request, or refusing to obey a court order to respond to a discovery request. Asks the Court to decide a lawsuit without a trial because the evidence shows that there is no real dispute about the key facts. A motion, before trial, asking the judge to exclude specific evidence from the trial. After entry of judgment, asks the Court to correct what a party argues is a mistake in the judgment. Asks the Court to order a person to make disclosures, or to respond to a discovery request, or to provide more detailed disclosures or a more detailed response to a discovery request. Asks the Court to deny certain claims in the Complaint, due to procedural defects. A motion asking the Court to allow more time to file a brief or comply with a court order; also referred to as a continuance. A defendant against whom default or default judgment has been entered may bring this motion in order to be allowed to appear in the suit and respond to the complaint. Asks the Court to hear a motion on a shorter-than-usual schedule. A motion asking the Court to order certain parts of the complaint or other pleading deleted because they are redundant, immaterial, impertinent, or scandalous. The party who files a motion. An alternative dispute resolution process in which a neutral third party (an arbitrator) gives a decision on the complaint after a hearing at which both parties have an opportunity to be heard; the parties are not required to abide by the decision. Usually used in the context of a motion for summary judgment; any party who is not bringing the motion. A deponent who is not a party to the lawsuit. A person who is not a party to the lawsuit but who has relevant information. An email generated by the ECF system that is sent to every registered attorney, party and watcher associated with a case every time a new document is filed. The NEF contains details about the filing and a hyperlink to the new document. Gives all of the information required under Rules 30(b) and 26(g)(2) of the Federal Rules of Civil Procedure, and must be served on opposing parties to a lawsuit. A public officer who is authorized by the state or federal government to administer oaths and to attest to the authenticity of signatures. A statement in the first paragraph of a motion telling the other parties what type of motion you have filed and when you have asked the Court to hold a hearing on the motion. The formal means of challenging evidence on the ground that it is not admissible.
MOTION TO COMPEL MOTION TO DISMISS MOTION TO EXTEND TIME MOTION TO SET ASIDE DEFAULT/DEFAULT JUDGMENT MOTION TO SHORTEN TIME MOTION TO STRIKE MOVING PARTY NON-BINDING ARBITRATION NON-MOVING PARTY NON-PARTY DEPONENT NON-PARTY WITNESS NOTICE OF ELECTRONIC FILING (NEF) NOTICE OF DEPOSITION NOTARY PUBLIC NOTICE OF MOTION OBJECTION
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A judge may decide to render a decision on a motion "on the papers" rather than holding a hearing in the courtroom; in such a case, the judge will vacate the hearing. At the beginning of the trial, after the jury has been selected, if it is a jury trial, the parties have an opportunity to make individual opening statements, in which they can describe the issues in the case and state what they expect to prove during the trial. In the context of motions, the party against whom a motion is filed; more generally, the party on the other side. A filing that consists of a brief, often accompanied by evidence, filed with the court containing facts and legal arguments that explain why the Court should deny the motion. During examination of witnesses at trial, if a party objects to evidence being admitted or a question being asked, the judge may overrule the objection. This means that the evidence will be admitted or the question may be asked, unless the judge later sustains a different objection. Public Access to Electronic Court Records is an internet database where docket information is stored. During jury selection, after all of the jurors challenged for cause have been excused, the parties will have an opportunity to request that additional jurors be excused without having to give any reason for the request. A false statement made under oath, punishable as a crime. The compilation of the originals of every document filed with the Court . A claim by the defendant against the plaintiff that is not based on the same events or transactions as the plaintiffs claim against the defendant. If the physical or mental condition of a party (or a person under the custody or legal control of a party) is at issue in a lawsuit, the Court may order that person to have a physical or mental examination by a medical professional such as a physician or psychiatrist; unlike other discovery procedures, physical or mental examinations can be obtained only by filing a motion with the court, or by agreement of the parties. Formal documents that are filed with the court, especially initial filings such as complaints and answers. Pleadings and most other court filings are written on pleading paper, which in this Court is letter-sized paper with the line numbers 1 through 28 running down the left side. The person who filed the complaint and claims to be injured by a violation of the law. In the center of the courtroom, there are two long tables and chairs where the lawyers and parties sit during hearings and trial; the table nearest the jury box is usually the plaintiffs. The last section of a complaint in which the plaintiff tells the Court what the plaintiff wants from the lawsuit: money damages, a court order telling the defendant to do or not do something, or other relief. A hearing shortly before trial where the judge discusses the requirements for conducting trial and resolves any final issues that have arisen before trial. The disclosures required by Rule 26(a) (3) of the Federal Rules of Civil Procedure of certain information about evidence that you may present at trial (except for evidence that will be used solely for impeachment). Information that is protected by legal rules from disclosure during discovery and trial. Legal representation by an attorney that is free to the person represented. A Latin term meaning "for onself." A pro se litigant is a party without a lawyer handling a case in court. The rules parties must follow for bringing and defending against a lawsuit in court. A person authorized by law to serve the complaint and summons on the defendant. A document attached to each document filed with the court (or filed separately at the same time as the document) in which the filer affirms that he or she has served the document on other parties.
OVERRULE AN OBJECTION PACER SYSTEM PEREMPTORY CHALLENGE PERJURY PERMANENT CASE FILE PERMISSIVE COUNTERCLAIM PHYSICAL OR MENTAL
EXAMINATION
PLEADINGS, PLEADING PAPER PLAINTIFF PLAINTIFFS TABLE PRAYER FOR RELIEF PRETRIAL CONFERENCE PRETRIAL DISCLOSURES PRIVILEGED INFORMATION PRO BONO REPRESENTATION PRO SE PROCEDURAL RULES PROCESS SERVER PROOF OF SERVICE
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PROPOSED ORDER (OR OTHER DOCUMENT) PROTECTIVE ORDER QUASH A SUBPOENA REBUTTAL REBUTTAL TESTIMONY RE-DIRECT EXAMINATION REFERRING JUDGE REFERRAL JUDGE REMEDIES RENEWED MOTION FOR
JUDGMENT AS A MATTER OF LAW
A document a party is required by court rules to submit with a filing such as a motion that can serve as the final order if the judge crosses off the word "proposed" and signs at the bottom. A court order limiting discovery, either as to how discovery may be conducted or what can be discovered. After a motion, the Courts action vacating a subpoena so that it has no legal effect. The final stage of presenting evidence in a trial, presented by the plaintiff. At trial, after defendants have completed examining each of their witnesses, plaintiffs can call additional witnesses solely to counteror rebuttestimony given by the defendants witnesses. At trial, after the opposing party has cross-examined a witness, the party who called the witness may ask the witness questions about topics covered during the cross-examination. A federal district judge who refers an issue or motion within a lawsuit to another judge, usually a magistrate judge. A United States magistrate judge assigned to handle an issue, proceeding or motion within a case assigned to a federal district judge. In the context of a civil lawsuit, remedies are actions the Court may take to redress or compensate a violation of rights under the law. A motion arguing that the jury must have made a mistake in its verdict because the evidence was so one-sided that no reasonable jury could have reached that decision. Refers to both the answer to a counterclaim and the response to the opposition to a motion. A document responding to the opposition to a motion. After a federal district judge refers an issue for factual and legal findings by a magistrate judge, the magistrate judge files a report and recommendation containing those findings. A discovery request that a party admit a material fact or element of a claim. The first step for the plaintiff to obtain a default judgment by the Court against a defendant; directed to the Clerk of Court, the request must show that the defendant has been served with the complaint and summons, but has not filed a written response to the complaint in the required time. A discovery request served on a party in order to enter property controlled by that party for the purpose of inspecting, measuring, surveying, photographing, testing or sampling the property or any object on the property relevant to your lawsuit. A common discovery request served by a party seeking documents or other items relevant to the lawsuit from another party. A discovery request served on a party in order to inspect, copy, test, or sample anything relevant to your lawsuit which is in the possession, custody, or control of another party to the lawsuit. A written request that the defendant accept the summons and complaint without formal service. A discovery request served on a party asking that the party admit in writing and under oath the truth of any statement, or to admit the applicability of a law to a set of facts. A Courts announcing its decision on a motion in the courtroom following the hearing on that motion. A punishment the Court may impose on a party or an attorney for violating the Courts rules or orders. Documents that do not need any proof of their genuineness beyond the documents themselves, in order for them to be admissible evidence in accord with Rule 902 of the Federal Rules of Evidence.
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SERVE, SERVICE SERVICE OF PROCESS SETTLEMENT CONFERENCE SETTLEMENT JUDGE SIDE BAR SPEAKING MOTION STANDING ORDERS STATEMENT OF NON OPPOSITION STATEMENT OF UNDISPUTED
FACTS
The act of providing a document on a party in accord with the requirements found in Rules 4 and 5 of the Federal Rules of Civil Procedure. The formal delivery of the original complaint in the lawsuit to the defendant in accord with the requirements for service found in Rule 5 of the Federal Rules of Civil Procedure. A proceeding usually held in a magistrate judge's chambers in which the judge works with the parties toward a negotiated resolution of part or all of the case. A federal judge usually a magistrate judge who holds settlement proceedings in a particular case. A private conference beside the judges bench between the judge, and the lawyers (or selfrepresented parties to discuss any issue out of the jurys hearing. A motion first made in the courtroom without motion papers being filed first. An individual judges orders setting out rules and procedures, in addition to those found in the Federal Rules of Civil Procedure and the Civil Local Rules, that apply in all cases before that judge. You can find them on the judges webpage via: http://www.cand.uscourts.gov/judges. A partys written notice that it does not oppose another partys motion. A list of facts filed in a summary judgment motions with citations to the evidence showing that those facts are true. The statement may be jointly prepared and filed by the parties; separate statements require a prior court order. A hearing the judge may hold during the course of the lawsuit to assess the progress of the case, or address problems the parties are having. A legal time limit by which the plaintiff must file a complaint; after the time limit, the complaint may be dismissed as time-barred. A written agreement signed by all the parties to the lawsuit or their attorneys. To order claims or parts of documents stricken or deleted so that they cannot be part of the lawsuit or proceeding. A federal court has subject matter jurisdiction only as defined by Congress over cases arising under the Constitution, treaties or laws of the United States and diversity cases in which the parties are from different states and the amount in controversy is greater than $75,000. A document issued by the Court requiring a non-party to appear for a court proceeding or deposition at a specific time and place or to make certain documents available at a specific time and place. A form of subpoena used to require a non-party deponent to bring specified documents to a deposition. Determines whether the facts of each individual lawsuit constitute a violation of the law for which the Court may order a remedy. After a motion, a decision by the Court to enter judgment in favor of one of the parties without a trial, because the evidence shows that there is no real dispute about the material facts. A document from the Court that you must serve on the defendant along with your original complaint to start your lawsuit. To affirm that an objection is correct, and evidence should be excluded. The list of references to law that should be included with every brief more than 10 pages long. The Courts taking time to consider the motion and write an order after hearing arguments on the motion instead of ruling on the motion in the courtroom. The written version of what was said during a court proceeding or deposition as typed by a court reporter or court stenographer. A type of subpoena that requires a witness to appear to testify at trial on a certain date. A fact about which all the parties agree.
SUBPOENA SUBPOENA DUCES TECUM SUBSTANTIVE LAW SUMMARY JUDGMENT SUMMONS SUSTAIN AN OBJECTION TABLE OF AUTHORITIES TAKING A MOTION UNDER CONSIDERATION (OR UNDER SUBMISSION) TRANSCRIPT TRIAL SUBPOENA UNDISPUTED FACT
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VACATE VENUE VERDICT VERDICT FORM VOIR DIRE WAIVER OF SERVICE, WAIVING
SERVICE
To set aside a Court order so that the order has no further effect, or to cancel a scheduled hearing or trial. The geographic location where the lawsuit is filed. The jurys final decision about the issues in the trial. In a jury trial, the form the jury fills out to record the verdict. Part of the jury selection process in which potential jurors are asked questions designed to reveal biases that would interfere with fair and impartial jury service; the judge may ask questions from a list the parties have submitted before trial and may also allow the lawyers (or parties without lawyers) to ask additional questions. A defendant's written, signed agreement that he or she does not require a document (usually the complaint) to be served on him or her in accordance with the formal service requirements of Rule 5 of the Federal Rules of Civil Procedure. As a final decision on the merits of the claim. If a court dismisses claims in your complaint with prejudice, you may not file another complaint in which you assert those claims again. Without a final decision on the merits which would prevent the claim from being re-filed. Dismissal without prejudice is sometimes also referred to as dismissal with leave to amend because you are permitted to file an amended complaint or other document. A person who has personal or expert knowledge of facts relevant to a lawsuit. The seat in which a witness sits when testifying in court, usually located to the side of the bench.
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