Pro Se Litigants Manual

A MANUAL FOR PRO SE LITIGANTS APPEARING
BEFORE THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF NEW YORK
January 2011
Published and Copyrighted by
the District Executives Office
United States District Court
Southern District of New York
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TABLE OF CONTENTS
INTRODUCTION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
What Does It Mean to Proceed Pro Se? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The Decision to Proceed Pro Se . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
THE PRO SE OFFICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
General Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Contact Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Accepting Papers .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Other Pro Se Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Forms Available From the Pro Se Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
THE COURT SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
State Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Federal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Organization of the Federal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
GENERAL INFORMATION ABOUT THE SOUTHERN DISTRICT . . . . . . . . . . . . . . . . . . . . . . . . . . 12
District Judges/Magistrate Judges .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Clerks Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Proper Courthouse Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
In the Courthouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
At the Pro Se Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
In the Courtroom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Rules of Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Legal Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ALTERNATIVES TO SELF-REPRESENTATION .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Hiring an Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Requesting Pro Bono Counsel from the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Employment Discrimination Pro Bono Mediation Panel . . . . . . . . . . . . . . . . . . . . . . . . . 27
Attorneys Fees and Costs .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Interpreters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
LITIGATION OVERVIEW .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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JURISDICTION AND VENUE .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Federal Question Jurisdiction, 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Diversity Jurisdiction, 28 U.S.C. 1332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Venue: In Which Federal Judicial District Should I File My Case? . . . . . . . . . . . . . . . . 39
Organization of Federal Judicial Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Venue for a Federal Question Case .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Venue for a Diversity Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Venue for a Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Selected Venue Provisions for Common Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Assignment of Cases: Manhattan or White Plains Courthouse . . . . . . . . . . . . . . . . . . . . 42
COSTS OF FILING AN ACTION IN THIS COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
In Forma Pauperis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Prisoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Schedule of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
WRITING AND FILING THE COMPLAINT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Writing the Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Contents of the Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Caption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Jury Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Subject Matter Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Statement of Facts (Rule 8) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Prisoners - Exhaustion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Remedy Sought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Filing the Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SERVICE OF THE SUMMONS AND COMPLAINT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Parties Permitted to Serve Process (Rule 4(c)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Forms Required for Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Time Limits for Service (Rule 4(m)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Rules for Service (Rule 4) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Waiver of Service of Summons (Rule 4(d)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Service Upon Individuals (Rule 4(e)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Service Upon Minors and Incompetent Persons (Rule 4(g)) . . . . . . . . . . . . . . . . . . . . . . 59
Service Upon Corporations and Associations (Rule 4(h)) . . . . . . . . . . . . . . . . . . . . . . . . 59
Service Upon the United States and Its Agencies
or Officials (Rule 4(i)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Service Upon State, Local or Foreign Governments (Rule 4(j)) .. . . . . . . . . . . . . . . . . . . 60
Proof of Service (Rule 4(l)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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SERVICE AND FILING OF PLEADINGS AND COURT PAPERS AFTER
SERVICE OF THE COMPLAINT: RULE 5 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
AMENDED COMPLAINTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Filing and Service of Amended Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ANSWER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
An Answer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Responses to the Complaints Allegations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Counterclaims Against the Plaintiff.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Cross-Claims Against Other Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Third-Party Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Motion to Dismiss .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Time Limitations to Respond to a Complaint, Counterclaim or Cross-Claim . . . . . . . . . 69
Extension of Time to Respond to the Complaint, Counterclaim or Cross-Claim . . . . . . 70
Procedure for Filing the Answer or Motion to Dismiss the Complaint. . . . . . . . . . . . . . . 70
Failure to File a Response to a Complaint: Default Judgments . . . . . . . . . . . . . . . . . . . . 70
MAGISTRATE JUDGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Consent to Proceed Before a Magistrate Judge
for All Purposes Including Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Orders Issued by the Magistrate Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Objections to a Magistrate Judges Report & Recommendation . . . . . . . . . . . . . . . . . . . 75
PRETRIAL CONFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
The Initial Case Management Conference (Rule 16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Discovery Conferences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
The Final Pretrial Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Conduct at All Conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
DISCOVERY: INTRODUCTION & INITIAL DISCLOSURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Introduction to Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Mandatory Initial Disclosures (Rule 26(a)(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
The Content of Initial Disclosures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SCOPE OF DISCOVERY IN GENERAL (RULE 26(b)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Methods of Discovery: Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
DISCOVERY: INTERROGATORIES (RULE 33) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Answers and Objections to Interrogatories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Court Prepared Interrogatories in Certain Prisoner Pro Se
Actions (Local Civil Rule 33.2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Court Prepared Discovery Requests in Pro Se
Employment Discrimination Cases .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
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DISCOVERY: REQUESTS FOR PRODUCTION OF DOCUMENTS (RULE 34) .. . . . . . . . . . . . . . . . . 88
Response to Document Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Document Requests to Non-Parties (Rules 34 and 45) .. . . . . . . . . . . . . . . . . . . . . . . . . . 89
Response to a Subpoena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
DISCOVERY: PHYSICAL AND MENTAL EXAMINATIONS (RULE 35) . . . . . . . . . . . . . . . . . . . . . . 92
DISCOVERY: REQUESTS FOR ADMISSION (RULE 36) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Response to a Request for Admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
DISCOVERY: DEPOSITIONS (RULES 27-32) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Objections at the Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Deposition of a Non-Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Motions to Quash a Subpoena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Failure to Appear for a Noticed Deposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Procedures After a Deposition is Taken . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Cost May Make Depositions Impractical for a Pro Se Party. . . . . . . . . . . . . . . . . . . . . . 103
DISCOVERY DISPUTES AND SANCTIONS (RULE 37) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Motion for a Protective Order (Rule 26(c)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Motion to Compel or for Sanctions (Rule 37) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Discovery Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
MOTION PRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Motion Timing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Extension of Time .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Urgent Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Common Types of Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Motion to Dismiss the Complaint (Rule 12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Discovery Motion (Rule 37). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Summary Judgment Motion (Rule 56).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Motions Made During or After Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Motion for Judgment as a Matter of Law (Rule 50). . . . . . . . . . . . . . . . . . . . . . 120
Motions Challenging an Order or Final Judgment (Rules 59 and 60). . . . . . . . . 121
SETTLEMENT AND MEDIATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Settlement Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Settlement of Prisoner Lawsuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Mediation in Pro Se Employment Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
The Pro Se Employment Case Mediation Process . . . . . . . . . . . . . . . . . . . . . . . 126
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TRIAL AN OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
The Role of the Judge During Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
The Stages of a Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Jury Selection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Judges Statements to the Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Opening Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Presentation of Evidence .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Direct and Cross Examination of Witnesses .. . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Closing Statements (also known as Closing Arguments) . . . . . . . . . . . . . . . . . . 133
Jury Instructions (also known as Jury Charge) . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Proposed Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Objections to Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Jury Deliberation .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Verdict .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
APPEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Appeal Fees .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Interlocutory Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
Alternatives to Appeals .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Motion for a New Trial or to Alter or Amend the Judgment (Rule 59) . . . . . . . 139
Motion for Reconsideration or Reargument (Local Civil Rule 6.3) . . . . . . . . . . 140
Motion for Relief from Judgment or Order (Rule 60) . . . . . . . . . . . . . . . . . . . . 140
Proceedings on Appeal Before the Second Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
GLOSSARY OF TERMS USED IN THIS MANUAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
-vi-
FORMS INCLUDED IN THIS MANUAL
FORM PAGE*
APPLICATION FOR THE COURT TO REQUEST COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
REQUEST TO PROCEED IN FORMA PAUPERIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
PRISONER AUTHORIZATION (PLRA FILING FEES ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
COMPLAINT UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. 1983 (PRISONER COMPLAINT) . . . . . . . . . 45
COMPLAINT FOR EMPLOYMENT DISCRIMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
GENERAL COMPLAINT FORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SUMMONS IN A CIVIL CASE AND CIVIL COVER SHEET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
AFFIRMATION OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ANSWER AND NOTICE OF APPEARANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
MOTION FOR DEFAULT JUDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
CONSENT TO PROCEED BEFORE A MAGISTRATE JUDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
PLAINTIFFS INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS
(PRISONER CASES, LOCAL RULE 33.2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
PLAINTIFFS INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS (EMPLOYMENT
DISCRIMINATION CASE) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
NOTICE OF MOTION, AFFIRMATION IN SUPPORT OF MOTION,
AFFIRMATION IN OPPOSITION TO MOTION,
REPLY AFFIRMATION IN SUPPORT OF MOTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
LOCAL CIVIL RULE 12.1 & NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
LOCAL CIVIL RULE 56.2 & NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
SAMPLE SETTLEMENT AGREEMENT AND RELEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
REFERRAL FORM FOR PRO SE EMPLOYMENT DISCRIMINATION MEDIATION . . . . . . . . . . . . . . . . . . 126
NOTICE OF APPEAL IN A CIVIL CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
MOTION FOR EXTENSION OF TIME TO FILE APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
COMBINED NOTICE OF APPEAL IN A CIVIL CASE
& MOTION FOR AN EXTENSION OF TIME .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
__________________
* The page indicated is where the form is discussed; the form itself is found by clicking on the
hyperlink in the electronic format, or at the end of that section of the published manual.
1
INTRODUCTION
Welcome to the United States District Court for the Southern District of New York. The
Southern District of New York is the largest and oldest federal court in the nation. It was first
convened in New York City as the District of New York on November 3, 1789 three months before
the United States Supreme Court held its first proceeding. The Southern District of New York sits
in downtown Manhattan and in White Plains, New York. The courthouses addresses are:
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, New York 10007-1312
Charles L. Brieant, Jr. Federal Building and Courthouse
300 Quarropas Street
White Plains, New York 10601-4150
official website: www.nysd.uscourts.gov
Please note that all mailings and filings must be addressed to the Pro Se Office at 500
Pearl Street in Manhattan. See Contact Information, on page 5.
2
This manual was prepared by the Pro Se Office as a guide for persons who are representing
themselves either as plaintiffs or as defendants in lawsuits before the United States District Court
for the Southern District of New York. It is intended as an informative and practical resource and
guide to understanding the basic practices, rules and procedures of the Court. A glossary that
explains some of the words used in this manual begins at page 144.
It is important to note, however, that every time a person feels injured does not mean that the
perceived wrong or injury is recognized at law. What you have experienced may not be a cause of
action and therefore there may be no remedy recognized at law, or at least none recognized under
federal law.
This manual describes court procedures and rules but does not take the place of the Federal
Rules of Civil Procedure, the Local Civil Practices of the United State District Courts for the
Southern and Eastern Districts of New York, or the Individual Practices of the Judges of this Court.
The information contained in this manual applies only to civil cases in this District Court, and does
not pertain to bankruptcy proceedings, habeas corpus petitions or criminal matters.
The statements and materials presented in this manual are for educational purposes only and
do not constitute legal advice. This manual is not intended to be a substitute for the advice and
assistance of a licensed attorney. In addition, you should keep in mind that the law is constantly
changing and the information contained in these pages may not be complete or up-to-date. The laws
and rules to which this manual refers may have changed since the manuals publication, and there
may exist new laws or rules applicable to your case. It is your responsibility to verify the accuracy
of any information on which you intend to rely.
3
What Does It Mean to Proceed Pro Se?
Individuals in court cases are generally referred to as plaintiffs or defendants. The
plaintiff is the person bringing the lawsuit who alleges a claim based on a right protected by law,
which it is claimed the defendant violated; the defendant is the person who allegedly violated that
claim or right. The great majority of individuals appearing before a court, also known as litigants
or parties, are represented by licensed attorneys who practice law, have appeared before the court,
and are familiar with the rules and procedures of the court. Litigants or parties representing
themselves in court without the assistance of a licensed attorney are known as pro se litigants. The
word pro se is Latin for in ones own behalf.
Under United States law, you are permitted to file and conduct cases in federal court pro se.
28 U.S.C. 1654. (U.S.C. refers to the United States Code, which contains all federal laws.) Any
individual who is before the court without an attorney is considered pro se. There are, however,
limitations on the right to self-representation. A person planning to initiate or defend an action on
behalf of a corporation or partnership may not appear pro se, and must be represented by an attorney,
even if there are only one or two shareholders in the corporation. Similarly, a pro se litigant may not
bring a class action (that is, an action on behalf of others). Furthermore, a non-attorney parent
generally may not appear pro se on behalf of his/her child, unless it is to appeal the denial of Social
Security benefits to such child.
The Decision to Proceed Pro Se
Individuals who are considering representing themselves are encouraged to evaluate carefully
the risks associated with proceeding pro se and to educate themselves regarding the potential
consequences. Litigation is extremely costly, time consuming, and complex. The legal process can
4
be difficult to understand. Although the Pro Se Office and other court personnel may explain basic
procedures and provide standard forms, they are prohibited from giving legal advice. They cannot
advise you on whether to bring a certain action or what remedies you should seek. Furthermore, it
is likely that a pro se litigants opponent will be represented by an attorney. Thus, a pro se litigant
could be at a serious disadvantage without an attorney. A pro se litigant is subject to the same rules
of law and evidence as individuals represented by an attorney. The court cannot make exceptions
for pro se parties.
This manual provides a pro se party with information to consider before filing a lawsuit as
well as procedural assistance in filing and litigating a lawsuit in the United States District Court for
the Southern District of New York. The following chapters provide general information about the
Southern District of New York, outline the structure of the court system, give an overview of
litigation from the inception of an action through trial, and explain basic court rules and procedures.
5
THE PRO SE OFFICE
General Information
The Pro Se Office acts as a central resource for the Southern District of New York on all pro
se matters. While its employees accept all papers to be filed in pro se cases and may answer general
questions regarding court procedures, they are not permitted to give advice on legal strategy, to
represent litigants in court, or to participate in any discussion with pro se litigants regarding the
merits of a particular case. It is important that you read this entire manual before you direct specific
questions to the Pro Se Office about your case because many of your questions will be answered in
these pages.
Contact Information
The Pro Se Office for the Southern District of New York is located in Room 230 of the
Daniel Patrick Moynihan Courthouse at 500 Pearl Street in Manhattan. (There is no Pro Se Office
in the Charles L. Brieant, Jr. Federal Building and Courthouse in White Plains.) The Pro Se Office
is open to the public Monday through Friday, 8:30 a.m. to 5:00 p.m. The Pro Se Office is closed on
weekends and federal holidays. The Pro Se Offices mailing address is:
Pro Se Office
500 Pearl Street, Room 230
New York, NY 10007
The telephone number of the Pro Se Office is (212) 805-0175. The Pro Se Office cannot accept
collect calls. No appointment is needed to speak to Pro Se Office staff, in person or on the
telephone.
6
Please remember that it is your responsibility to ensure that the Court is always able to
contact you regarding your case. Therefore, you must immediately notify the Pro Se Office in
writing of any change of your address (a letter to the Pro Se Office is satisfactory, but must identify
the name of your case and docket number, as well as your new address). If you fail to do so, the
Judge may dismiss your case.
Accepting Papers
The Pro Se Office accepts all papers submitted by pro se litigants, beginning with the filing
of the complaint and ending with the filing of a notice of appeal. By standing order of the Court,
all pro se litigants must submit their papers to the Pro Se Office (unless specifically directed by
the Judge to submit papers directly to that Judges chambers). Papers can be filed with the Pro
Se Office in person or by mail; the Pro Se Office does not accept faxes or email. The Pro Se Office
files the original papers in the Clerks Office and will send any required courtesy copies to the Judges
chambers.
Once your case is assigned a Judge and a case number, which is known as the docket number,
the Judges initials and docket number must appear on all papers submitted to the Pro Se Office. The
docket number consists of the last two digits of the year in which the case was filed, followed by
Civ. to designate its status as a civil case or Cr. to designate its status as a criminal case, a four
or five digit number, and the initials of the Judge assigned to your case. Thus, 09 Civ. 4567 (LAP)
is the 4,567th civil case filed in the year 2009, and the case is assigned to the Honorable Loretta A.
Preska.
In addition, all documents after the complaint must be served on the opposing party and must
be accompanied by proof of service, called an Affirmation of Service. The Pro Se Office checks all
7
documents submitted by pro se litigants for proof of service before forwarding them to the docketing
department, which is responsible for entering documents into the courts computer system, also
known as the docket. Proof of service of all papers after the defendant has responded to the complaint
should be on a separate sheet of paper, stating: I declare under penalty of perjury that I mailed a copy
of [name of the document] to counsel for the opposing party, [give the lawyers name and address],
on [date], and be signed and dated by you. It need not be notarized.
The Pro Se Office is unable to accept any documents without the case number, Judges
initials, and proof of service. If documents are mailed to the Pro Se Office without the required
information, they may be returned to you. To ensure properly filing of your documents, you should
include on the top of all filings this information and a title of the document indicating what it is.
Other Pro Se Office Functions
Each day that the court is open for business, a writ clerk is available in the Pro Se Office to
assist pro se litigants who either call, write, or visit the Pro Se Office. The Pro Se Office staff is
employed by the court and must remain neutral. Therefore, like all other court employees, the Pro
Se Office staff may not give substantive legal advice, draft papers for pro se litigants, fill out forms,
serve papers, act as interpreters, or notarize documents.
Although the Pro Se Office staff can provide pro se litigants with general instructions
concerning court rules and procedures, they are prohibited from interpreting those rules and
procedures, the law, evaluating facts, calculating time deadlines, or otherwise participating, directly
or indirectly, in any particular case. Remember that no matter how much a particular court employee
may want to help you with your case, that employee is prohibited from giving you any assistance
other than basic procedural information.
8
Keep in mind that all questions concerning the status of your case should be addressed to the
Pro Se Office rather than to a Judges chambers. If you have access to a computer, you may be able
to set up an account on Pacer which provides public access to court electronic records. Pacer permits
you to view the docket sheet, which lists the documents that have been filed. You do not need to be
an attorney or have the permission of the court to view documents on Pacer. The website address for
Pacer is www.pacer.psc.uscourts.gov. This website is not operated by this court and any technical
questions regarding the website should be addressed to Pacer.
It is improper for any party to contact the Judge directly about the case outside the hearing of
another party (this is called ex parte communication with the Judge and it is prohibited).
Forms Available from the Pro Se Office
The Pro Se Office has numerous forms which are available to litigants free of charge,
including a General Complaint, Prisoner Civil Rights Complaint, Employment Discrimination
Complaint, Summonses, Habeas Corpus Petitions (28 U.S.C. 2255 & 2254), forms to apply for
waiver of the required filing fee based on demonstrated financial need (called the Request to Proceed
In Forma Pauperis), an Application for the Court to Request Counsel, motion instructions, sample
motion forms, and appeal forms, including a Notice of Appeal. Many forms are included in this
manual, and other forms may be obtained from the Southern Districts website
(www.nysd.uscourts.gov), particularly the section of the website labeled Representing Yourself In
Federal Court, by visiting the Pro Se Office personally, or by requesting forms by phone or letter.
If you are currently confined at a federal, state or local prison or jail in New York, you also may
obtain certain forms from the facilitys law library.
9
The Pro Se Office also has copies of some common federal statutes and rules, which are
available on request. Please note that the Pro Se Office cannot distribute copies of all rules and
statutes.
10
THE COURT SYSTEM
The countrys legal structure is made up of state and federal court systems, which function
independently. Certain matters may be brought only in federal court, while other matters may be
brought only in state court.
State Courts
State courts possess general (unlimited) jurisdiction. That is, they have the power to hear all
cases except those over which another court has exclusive authority. The majority of cases brought
in this country are filed in state courts. These cases include but are not limited to disputes involving
contracts, personal injury, automobile accidents, landlord-tenant, divorce and child custody matters.
The organization of the state court system differs from state to state. Very broadly, in New
York, the trial court with general jurisdiction over both civil and criminal matters is the New York
Supreme Court. That court may hear any matter except cases filed against the State, which must be
brought in the New York State Court of Claims. Appeals from the state trial court typically are heard
in the Appellate Divisions of the Supreme Court. New Yorks highest appeals court is the Court of
Appeals, which is located in Albany.
Federal Courts
Federal courts have the power to hear only certain types of cases. Unless (a) the case involves
a violation of federal law, or (b) the parties live in i.e., are citizens of different states and the
amount of damages in question involves more than $75,000, a federal court does not have the power
to hear the case, and the case could not be brought in federal court. See also Jurisdiction and
Venue, on pages 35-42.
11
Organization of the Federal Courts
The federal court system is made up of courts on three different levels. The first level is the
district courts, which are the trial courts in the federal system. In the district courts, cases are tried,
witnesses testify, and a jury may be present. Congress has divided the country into ninety-four
federal judicial districts, with each state having at least one district. Larger states, like New York,
have more than one district. Each district has at least one federal court in it.
The federal appeals courts, the second level, are referred to as circuit courts. The United
States Court of Appeals for the Second Circuit hears appeals from all district courts in the states of
New York, Connecticut and Vermont.
The United States Supreme Court, the third and highest level, hears select cases from the
Circuit Courts of Appeal and from the highest state courts. However, since the Supreme Court has
the authority to select which cases it chooses to hear, it hears only a small percentage of the cases it
is asked to review.
12
GENERAL INFORMATION ABOUT THE SOUTHERN DISTRICT OF NEW YORK
District Judges/Magistrate Judges
There are two types of Judges in district court: United States District Judges and United
States Magistrate Judges. District Judges are appointed by the President with the approval of the
United States Senate, pursuant to Article III of the United States Constitution, for life terms. United
States Magistrate Judges are appointed by the Board of Judges of the District Court, for renewable
terms of eight years. All civil cases in the Southern District of New York are assigned randomly to
a District Judge and a Magistrate Judge at the time the complaint is filed. A Magistrate Judge takes
charge of the case only when the District Judge refers the case to the Magistrate Judge for a specific
purpose or when the parties consent to proceed before the Magistrate Judge for all purposes, as
described in the section on Magistrate Judges on pages 72-75.
Clerks Office
The Clerks Office consists of several departments.
The Open Records department contains files for all open or pending cases. If you wish to
view or obtain copies of any documents filed in an open case, you must contact this department.
The Closed Records department contains files for closed cases, for a period of two (2) years.
If you wish to view or obtain copies of any documents filed in a closed case, you must contact this
department.
For the Daniel Patrick Moynihan Courthouse at 500 Pearl Street in Manhattan, the Open
Records department is located in Room 260 and the Closed Records department is located in Room
370. If the Judge to whom the case is assigned is located in White Plains, both the open and closed
records are located in Room 156 of the Charles L. Brieant, Jr. Federal Building and Courthouse.
13
The Records Management department is responsible for handling the copy work for the public
at the statutory fee of $0.50 per page. The Records Management department is located in Room 270
at the Daniel Patrick Moynihan Courthouse and Room 156 of the Charles L. Brieant, Jr. Federal
Building and Courthouse. If you are unable to come to the courthouse, you may obtain copies of
documents from the Courts records by writing to the Records Management department. The Records
Management department will determine the cost of your request and inform you of the payment
necessary to process your request. After the Records Management department receives your payment,
the documents you requested will be mailed to you.
The Docketing department maintains the computerized record or docket for every case. A
docket is a chronological summary of all significant events in a case. For example, every time a
motion or opposition to a motion is filed or an appearance is made for a conference or hearing, an
entry summarizing the event is added to that cases docket. You may review the docket in your case
on public access computer terminals located in the public areas of the Open Records departments, the
Closed Records department and the Clerks Office in Manhattan and White Plains. You may request
a copy of the docket for a case by contacting the Records Management department. The fee for such
a request is $0.50 per page. The Pro Se Office will provide you with a free copy of the docket sheet
in your case upon written request. When responding to your procedural questions, the staff of the Pro
Se Office may provide relevant docket information to you over the telephone. Any request about the
status of your case, however, must be made in writing so that the Pro Se Office can send a docket
sheet to you.
14
Proper Courthouse Conduct
You must be polite and patient with court personnel at all times. Keep in mind that busy court
employees handle thousands of cases besides yours each year and are not personally responsible for
the rules that apply to your lawsuit. Also, remember that it is improper for you to try to influence
court employees in your favor or to try to persuade them to give you non-public information about
your case.
In addition, just as you cannot select the Judge who will be assigned to handle your particular
case, you cannot select the court staff to process your case either. Rather than request assistance from
a particular Pro Se Office employee on any given day, you must accept assistance from the staff
assigned to duty that day.
Always be courteous to all court employees, whether they are Judges, court security officers,
courtroom deputies, secretaries, law clerks, file clerks, pro se staff attorneys, or pro se writ clerks.
In The Courthouse . . .
Weapons, contraband and other illegal items are forbidden.
Cell phones, cameras, radios, recording devices and computers are not allowed, and
must be left with the Courts Security Office.
Dress properly.
Organize your papers and your thoughts.
At the Pro Se Office . . .
Be polite and listen carefully to the staff.
Do not be afraid to ask questions. Please be mindful, however, that the staff cannot
provide legal advice.
15
Follow instructions. Please do not argue with the Pro Se Office staff.
Have your fees ready for payment. Fees can only be paid by cash, certified check,
money order, or credit card. Personal checks are not accepted.
In the Courtroom . . .
Gum chewing, eating and drinking, reading of newspapers and magazines, sleeping,
and loud talking are prohibited in the courtroom.
When the Judge or jury enters or leaves the courtroom, you should stand up.
Refer to the Judge as Your Honor, Judge, Sir or Madam.
When addressing the Judge, always stand, speak clearly, and be courteous and polite.
Be organized and prepared with your argument. Present your argument in a clear and
concise manner.
If it is not your turn to speak or the Judge has not posed a question to you, do not
interrupt opposing counsel or the Judge. Raise your hand if you need to get the
Judges attention.
Rules of Procedure
If you are going to handle your own case in federal court, you should have a basic
understanding of the procedural rules governing your case. There are three types of rules and
procedures controlling your case: (1) the Federal Rules of Civil Procedure (cited as Fed. R. Civ.
P.); (2) the Local Civil Rules for the Southern District of New York; and (3) the Individual Practices
of the Judge assigned to your case. Therefore, it is a good idea to become familiar with all of these
rules.
16
The Local Civil Rules for the Southern District of New York, the Judges Individual Practices,
as well as certain forms, are available on the Courts website (www.nysd.uscourts.gov). The Pro Se
Office cannot access the website for you or print/download information from it. In addition, the Local
Civil Rules may be found in most public law libraries in a book published by West Group entitled
McKinneys New York Rules of Court Federal. Judges Individual Practices also are available
free of charge from the Courts Cashiers Office.
Legal Research
It is important to recognize that laws, rules and procedures change over time. While this
manual is designed to assist you in going forward with your pro se litigation, it does not address in
any way the substantive law that applies in your case. This is the area that attorneys know and, if you
represent yourself, that you must know. Therefore, you must do legal research on your own
concerning your case.
Your first stop should be a law library that is open to the public. The law library will have a
number of different resources you can use to research the law of your case. At the law library you can
access legal information based on the topic of law, the statutes, and the case law. Below is a list of
courthouse-based law libraries open to the public.
Manhattan
NY County Public Access Law Library
80 Centre Street, Room 468
New York, NY 10013
(646) 386-3715
Bronx
Bronx Supreme Court - Law Library
851 Grand Concourse, Room 817
Bronx, NY 10451
(718) 618-3710
Brooklyn
Kings County Supreme Court - Law Library
360 Adams Street, Room 349
Brooklyn, NY 11201
(347) 296-1144
Queens
Queens Supreme Court Law Library
Queens County General Courthouse
88-11 Sutphin Avenue
Jamaica, NY 11435
(718) 298-1206
17
Staten Island
Richmond County Supreme Court - Law Library
Supreme Court Bldg.
18 Richmond Terrace
Staten Island, NY 10301
(718) 390-5291
Westchester County
Westchester County Supreme Court - Law
Library
111 Dr. Martin Luther King, Jr. Blvd.
White Plains, NY 10601
(914) 824-5660
Dutchess County
Supreme Court Law Library
50 Market Street
Poughkeepsie, NY 12601
(845) 486-2215
Orange County
Orange County Government Center
255-275 Main Street
Goshen, NY 10924
(845) 291-3138
Putnam County
20 County Center
Carmel, NY 10512
(845) 208-7804
Rockland County
1 South Main Street, Suite 235
New City, NY 10956
(845) 638-5396
Sullivan County
Hamilton ODell Library
New York State Supreme Court Library
Sullivan County Courthouse
Monticello, NY 12701
(845) 794-1547
Nassau County
100 Supreme Court Drive
Mineola, NY 11501
(516) 571-3883
Suffolk County
Suffolk County Supreme Court
Law Library
Cohalan Court Complex
400 Carleton Avenue
Central Islip, NY 11702
(631) 853-7530
Suffolk County
Criminal Courts Building
220 Center Street
Riverhead, NY 11901-3312
(631) 852-2419
Depending on the particulars of your case, your local public library may also have information
that could be helpful to you. You may also use the internet to conduct legal research. There are many
helpful legal websites on the internet. You should, however, be aware that not all websites provide
accurate information. Therefore, you should be cautious when reviewing a websites information.
18
You may access free on-line resources through the Pro Se pages of the Courts website. Once there,
you can link to many government websites which provide free access to statutes, rules and case law.
If you do not have a computer, you may access these internet resources on computers at your
local public library.
19
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20
ALTERNATIVES TO SELF-REPRESENTATION
Introduction
A party may appear in federal court represented by counsel or may represent himself/herself
pro se. 28 U.S.C. 1654. (U.S.C. refers to the United States Code, which contains all federal laws.)
It is advisable to proceed with an attorney because experienced legal counsel familiar with the rules
of procedures and the substantive law can greatly increase your chances of successfully resolving your
case.
The Sixth Amendment to the Constitution grants all persons accused of a crime the absolute
right to counsel in criminal proceedings only. There is no constitutional right to counsel in civil
proceedings, and the Court has no funds to hire attorneys for pro se parties.
Hiring an Attorney
Before you choose an attorney to hire, you should ask yourself three questions:
1. Does the attorney practice the type of law involved in your case?
Many attorneys specialize in certain types of law only, such as criminal law, matrimonial law,
landlord-tenant law, estate law, or tax law. An attorney whose practice is primarily in a specific area
of the law may not be familiar with the area of law in your case and therefore may not be an effective
advocate for you. In addition, many attorneys practice primarily in one particular type of court, such
as state court, and may be unfamiliar with the rules and procedures in federal court.
2. How does the attorney expect to be paid?
There are two types of fee arrangements you may make with an attorney: hourly rate and
contingency fee. An hourly rate fee allows the attorney to bill you for the amount of hours the
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attorney works on your case. This type of arrangement may be beneficial to you if you have funds
available to pay for an attorney and if the case is not too complex. Under this arrangement, at the
time of your first meeting or retention of the attorney, the attorney must inform you of the hourly rate
he or she intends to charge you, as well as the hourly rate for the work of any partners, associates, and
support staff such as paralegals. Be sure to inquire as to whether the rates are different for in-court
time and out-of-court time. This arrangement usually requires a retainer, that is, an amount of
money, to be paid to the attorney before work will begin on the case. A retainer is a sum of money
from which the attorney will draw expenses and fee charges.
A contingency fee does not generally require a financial retainer but rather is based on the
agreement that the attorney will claim a percentage, such as 33a%, of any money awarded to you at
the end of the case. Be sure to inquire as to what percentage of the award the attorney will take.
Whether the case is on an hourly fee or contingent fee basis, you will be responsible for the
out-of-pocket costs of the litigation, such as postage, photocopying, transcript costs, etc.
All arrangements regarding the fees to be paid to an attorney (including the percentage of any
recovery) should be spelled out in the retainer agreement or letter of engagement that you sign when
you hire the attorney. Always obtain and keep a copy of the retainer agreement for your records.
3. Are you comfortable with the attorney?
The relationship between attorney and client is unique. It is basic that the free flow of
information between an attorney and client not be interfered with in any way. The attorney may need
to know details of your life, as well as those of your family, friends, and colleagues; therefore, you
must feel absolutely comfortable when dealing with your attorney. You also should consider whether
22
the attorney can accommodate you or others involved in your case, for example, a person who does
not speak English, who is disabled, or who is a child.
Choosing an attorney may be as easy as opening the telephone book, but a referral to a lawyer
from someone you know who has personal knowledge of the lawyer likely will be more reliable. You
may also wish to contact the local bar associations listed below for referrals.
New York State Bar Association
1 Elk Street
Albany, New York 12207
(518) 463-3200
www.nysba.org
New York City Bar Association
42 West 44 Street
th
New York, New York 10036
General: (212) 382-6600
Referral: (212) 626-7373
www.nycbar.org
New York County Lawyers Association
14 Vesey Street
(212) 267-6646
www.nycla.org
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Bronx County Bar Association
New York State Supreme Court Bldg.
851 Grand Concourse
Bronx, New York 10451
General: (718) 293-2227
Referral: (718) 293-5600
www.bronxbar.com
[email protected]
Westchester County Bar Association
One North Broadway, Suite 512
White Plains, New York 10601
(914) 761-3707
www.wcbany.org
Dutchess County Bar Association
P. O. Box 4865
Poughkeepsie, New York 12602
(845) 473-2488
www.dutchesscountybar.org
[email protected]
Orange County Bar Association
P. O. Box 88
198 Main Street
Goshen, New York 10924
(845) 294-8222
www.orangecountybarassociation.org
[email protected]
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Putnam County Bar Association
P. O. Box 44
Carmel, New York 10512
(845) 225-4904
[email protected]
No website yet.
Rockland County Bar Association
337 N. Main Street
New City, New York 10956
(845) 634-2149
www.rocklandbar.org
[email protected]
Sullivan County Bar Association
P. O. Box 1040
Monticello, New York 12701
(845) 794-2426
No website yet.
Other bar associations may be found in the telephone book or via the internet. In addition,
other organizations such as The Legal Aid Society, www.legal-aid.org, and LawHelp/NY,
www.lawhelp.org/ny, may be helpful. Other public interest organizations may be willing to represent
you in certain types of cases without a fee.
Remember to keep a detailed record of all the efforts you make to find an attorney to represent
you. This not only will help to organize your search, but will provide evidentiary support for any
application for appointment of pro bono counsel you may make at a later date.
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Requesting Pro Bono Counsel from the Court
Unlike in criminal cases in which the defendant is guaranteed the right to counsel if he or she
cannot afford an attorney, there is no right to counsel in civil cases, nor do the federal courts have any
funds to pay attorneys in civil cases. If you are unable to hire an attorney, you may ask the Judge to
grant your request for counsel to represent you for free. The Southern District maintains panels of
attorneys who volunteer to represent, at no charge, parties whose requests for pro bono counsel have
been granted by the Judge. These attorneys are called Pro Bono Attorneys. These panels are
comprised of attorneys who are from private firms, who are solo practitioners, or who are law school
students supervised by attorneys at law school clinics. The names of the panel members are not
available to the public. You should understand, however, that there are many more people in need
of attorneys than there are volunteer attorneys willing to represent them. Even if your request for pro
bono counsel is granted, it does not mean that a lawyer will be available to represent you.
For the Judge properly to consider a request for pro bono counsel, there must already be a
lawsuit in this District. The Judge cannot appoint a lawyer to represent someone to discuss the
possibility of filing a lawsuit.
You may request pro bono counsel at any time during the litigation. While a party may submit
an application for counsel with the complaint, the Judge often will deny these requests without
prejudice to renewing them later in the litigation.
To request pro bono counsel, you must complete and submit an Application for the Court to
Request Pro Bono Counsel. A sample form is included in this manual (at the end of this section),
and is available from the Pro Se Office and on the Southern District website
(www.nysd.uscourts.gov). The Judge will consider the following factors in deciding whether to grant
26
your request for pro bono counsel: whether your case appears to have merit, that is, whether you are
likely to succeed in your lawsuit; whether the legal issues are complex or simple; your current
financial status insofar as it is relevant to your inability to hire counsel; what attempts you have made
to try to hire an attorney; your statement describing your need for an attorney, including facts
regarding the degree of your education, whether you have difficulty communicating in English, any
disabling conditions that may affect your ability to proceed on your own behalf, or family
circumstances that may have an effect on your ability to represent yourself.
A copy of your request for pro bono counsel must be served on the opposing party and the
original must be filed with the Pro Se Office along with an Affirmation of Service (described on page
62). The Judge will review the information. The decision whether or not to grant your request for
pro bono counsel is entirely within the Judges discretion pursuant to 28 U.S.C. 1915(e)(1).
Even if the Judge grants your request for pro bono counsel, you will receive a pro bono
attorney only if a member of the pro bono panel volunteers to take the case. There is no guarantee
you will actually get an attorney. The Judge cannot force an attorney to take a particular case.
Remember, unless or until an attorney files a Notice of Appearance officially notifying the Judge and
the other parties that he or she is your counsel of record, you are responsible for your own case. If
an attorney cannot be found to volunteer legal services, you must continue to represent yourself.
Unless the Judge says otherwise, your case will proceed through the litigation process while the Pro
Se Office searches for a volunteer lawyer.
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Employment Discrimination Pro Bono Mediation Panel
In January 2000, the Southern District created a program to include pro se employment
discrimination cases in the Southern Districts mediation program by asking pro bono counsel to
volunteer to represent the pro se plaintiff solely for the purpose of mediation/settlement. Both parties
must consent and the Judge must refer the case to the program. This program is discussed in the
section on Settlement and Mediation on pages 122-27.
Attorneys Fees and Costs
Some laws allow an attorney whether retained by the party or appearing for the party on a
pro bono basis to claim a fee for legal services if the attorney wins the case or negotiates a favorable
settlement. Litigants who represent themselves are not entitled to attorneys fees, but may be eligible
for reimbursement of costs and expenses if they win their case. The award of attorneys fees and
costs is within the Judges discretion and is a completely separate issue from the amount of damages
to which the party is entitled. Below are some examples of the types of cases which provide for
attorneys fees:
Civil Rights Cases See 42 U.S.C. 1988.
Employment Discrimination Cases See 42 U.S.C. 2000e-5(k).
Fair Labor Standard Act Cases See 29 U.S.C. 216(b), 626.
Social Security Disability Appeals See 28 U.S.C. 2412.
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Interpreters
The federal courts are not obligated to provide an interpreter free of charge to a litigant in a
civil case who is unable to speak in English. You may hire a certified court interpreter by contacting
the Courts Interpreters Office at (212) 805-0084. If you are unable to afford a certified court
interpreter, the Judge has discretion to permit you to use a relative or friend to act as an informal
interpreter during pretrial proceedings (but not at trial). If you wish to take advantage of this option,
you should ask the Judge for permission to have the informal interpreter appear with you in court, by
writing a letter to the Judge (through the Pro Se Office) in advance and sending a copy to your
adversary. If the Judge grants your request, introduce the person by name and relationship to you to
both the Judge and your adversary at the next proceeding.
Interpreters for the hearing-impaired (American Sign Language) are available for conferences,
hearings and trial free-of-charge upon request in advance; contact the Courts Interpreters Office to
arrange for an American Sign Language interpreter.
29
3(b). MOTIONS
(to dismiss the
complaint, for
extension of time,
to compel
discovery, for
summary
judgment, etc.)
RESPONSE BY
OPPOSING
PARTY
REPLY BY
MOVANT
DECISION
OF Judge
THE STEPS TO LITIGATING YOUR CASE
1. FILE COMPLAINT
2. SERVICE OF PROCESS

no?
3(c). DEFAULT 3(a). ANSWER
JUDGMENT yes?
4. SCHEDULING/SETTLEMENT
CONFERENCE
5. DISCOVERY
4. PRETRIAL/SETTLEMENT
CONFERENCE

6. TRIAL
dissatisfied?
8. APPEAL 7. JUDGMENT

LITIGATION OVERVIEW
The majority of cases never go to trial. Most cases either settle or are dismissed prior to trial.
The litigation process that occurs before trial is often more important than the trial itself. The
following is an overview of steps involved in litigating your case. Refer to the chart on the next page
for a brief description of each numbered step in the graph below. The remainder of this manual
explains each step in the litigation process in greater detail.
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1. Filing the Complaint
a) Receiving a Docket
Number
The plaintiff is the person who files the lawsuit. The defendant is
the person or entity being sued. A complaint should clearly inform the
court in a brief and concise way of the reason(s) the plaintiff is
bringing the lawsuit including the laws the plaintiff claims the
defendant has violated, the parties involved, and the relief the plaintiff
seeks. The filing of the complaint begins a civil lawsuit. An original
and two identical copies of the complaint must be delivered to the Pro
Se Office, in person or by mail. See also Writing and Filing the
Complaint, on pages 45-52. To begin a lawsuit, the plaintiff must
either pay a $350 filing fee or file a Request to Proceed In Forma
Pauperis, asking the court to waive the filing fee. See also Costs of
Filing an Action in this Court, on pages 43-52.
Once the case has been processed, the court will assign it a docket
number and a Judge. The number will identify the case in this court
and must be put on all future documents submitted to this court. The
Judges initials are written at the end of the docket number. An
example of a docket number is 09 Civ. 4567 (LAP).
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2. Service of
Process
This is the method by which a plaintiff officially notifies a
defendant that a lawsuit has been filed against him/her and that there
is a limited time within which to respond. Service of process requires
that the defendant be served with a copy of the summons and
complaint, according to very specific rules, within 120 days from the
date the court issued the summons. The summons informs the
defendant that s/he has been sued and has 21 days to respond to the
lawsuit (60 days if the defendant is the federal government).
Appropriate proof that the defendant has been served must be filed
with the Pro Se Office. See also Service of the Summons and
Complaint on Defendants, on pages 53-61.
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3. Defendants
Response
a) Answer
b) Motion
c) No Response
After service of process, the defendant will either: file an Answer,
file a Motion, or do nothing.
The answer is a formal response to the complaint by the defendant,
including any denials of and defenses to the allegations in plaintiffs
complaint. See also Answer, on pages 65-68.
A motion is a partys formal application asking the Judge to do
something. There are many different types of motions that can be
brought by either party and can be made at any time. The opposing
party must respond to a motion within a set time period. See also
Motion Practice, on pages 108-10.
If the defendant fails to answer or move to dismiss the complaint,
the plaintiff may seek entry of default judgment against the defendant,
by making a Motion for Default Judgment. Forms for this purpose are
available from the Pro Se Office and the Southern District website.
See also Pages 70-71.
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4. Conferences A conference is a court proceeding at which the attorneys and pro
se parties appear before the Judge to discuss issues in the case.
Conferences are scheduled at the Judges discretion. Scheduling,
status or discovery, pretrial and settlement conferences are routinely
held. Scheduling Conferences may occur to discuss discovery issues,
deadlines, pretrial motions, settlement, or to set a date for trial. Status
or Discovery Conference are called to make sure the case is
progressing properly and to resolve any discovery disputes. Pretrial
Conferences are scheduled prior to trial to narrow the issues to be tried,
discuss possible issues during trial, enter stipulations, encourage
settlement, and resolve any other trial related matters. Settlement
Conferences provide an opportunity for the parties to discuss ways to
resolve the dispute with the Courts assistance. See also Pretrial
Conferences, on pages 76-78.
5. Discovery Discovery is the process during which the parties exchange
information and gather evidence that may later be introduced at trial.
Discovery methods include depositions, document requests and
interrogatories. See also Discovery, on pages 79-107. Discovery
generally starts after the defendant files the answer. Discovery
generally occurs between the parties, and does not involve the Judge
unless there is a dispute.
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6. Trial A trial is the presentation of the case before a Judge and jury, or a
Judge without a jury, including jury selection, opening statements,
testimony of witnesses, offering exhibits into evidence, motions,
objections, closing arguments, and jury instructions. See also Trial:
An Overview, on pages 128-35.
7. Judgment A judgment is a final and official disposition in your case, by jury
verdict, or Judges decision on a motion or after trial.
8. Appeal If you lose your case (that is, if a final judgment is entered against
you), you may appeal to the United States Court of Appeals for the
Second Circuit by filing a timely Notice of Appeal with the Southern
Districts Pro Se Office. See also Appeals, on pages 136-42.
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JURISDICTION AND VENUE
Before starting an action in this court by filing a complaint, you should ask yourself two
questions: (1) Can the federal court properly hear this case (jurisdiction)? (2) If so, is the Southern
District of New York the appropriate district court in which to file this case (venue)?
The term jurisdiction refers to the power of a particular court to hear a certain kind of case.
State courts, which are courts of general jurisdiction, can hear nearly all types of cases, even those
arising under federal law. Federal courts, on the other hand, are courts of limited jurisdiction and may
hear only two types of cases: cases that raise a federal question under federal law, or cases where
there is diversity of state citizenship
Federal Question Jurisdiction, 28 U.S.C. 1331
28 U.S.C. 1331 states that [t]he district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States. This is called federal
question jurisdiction. A federal question arises when the complaint claims that federal law either
a provision of the federal Constitution, a statute passed by Congress, or a treaty ratified by the United
States has been violated. If a case is based on a violation of federal law, it generally does not matter
how much or how little money is sought.
The following are examples of some of the typical federal question cases that properly may
be brought under 28 U.S.C. 1331. This manual cannot list every type of case that can be brought
in federal court, but the following is a representative sampling of federal question cases.
Violations of Civil Rights by Prison Personnel or Challenges to Prison Conditions or
Policies Prisoners who believe their civil rights have been violated by prison personnel, or who are
subject to prison conditions or policies that constitute cruel and unusual punishment, may file an
36
action in federal court under the Fourth Amendment (for pretrial detainees), the Eighth Amendment
(for sentenced individuals), or the Due Process Clause of the Fourteenth Amendment (for both) to the
United States Constitution. These claims are generally filed under the federal civil rights statutes, 42
U.S.C. 1983. Before filing this type of claim in federal court, the Prisoner Litigation Reform Act
(PLRA) requires that prisoners must first fully exhaust their prisons internal administrative
grievance procedures, including all available internal prison-system appeals. A form Prisoner Civil
Rights Complaint, for filing a case under 1983 and describing the grievance requirement under the
PLRA, is included in this manual.
Violation of Civil Rights by the Police or Other Law Enforcement Personnel A person
who believes his or her civil rights have been violated by police or other law enforcement personnel,
such as claims of excessive force, false arrest or malicious prosecution, in violation of the
Constitution, may file a lawsuit under the federal civil rights statute, 42 U.S.C. 1983. A form
General Complaint is included in this manual.
Employment Discrimination If a person believes that, because of prohibited discrimination
and/or retaliation, he or she has been denied a job or promotion, is being harassed at work, or was
fired, that person may be able to bring a lawsuit in federal court. This is a federal question case
because federal laws prohibit employment discrimination based on race, color, sex, religion, national
origin, age, or disability. See 42 U.S.C. 2000e to 2000e-17; 29 U.S.C. 621-634; 42 U.S.C.
12101-12117. These statutes require a party first to pursue administrative remedies with the Equal
Employment Opportunity Commission (EEOC) and (except for age discrimination claims) obtain
a notice of right to sue letter before filing this type of claim in federal court. A form Employment
Discrimination Complaint is included in this manual.
37
Social Security Appeals A party who has previously filed a claim with the Commissioner
of Social Security for disability benefits and/or Supplemental Security Income under the Social
Security Act, and is dissatisfied with the Commissioners decision, may file a lawsuit seeking federal
court review of the Social Security Appeals Council denial of the claim, pursuant to 42 U.S.C.
1383(c)(3). Because these are cases in which federal courts review the administrative record from
the Social Security Administration, special litigation procedures must be followed. A form for filing
a Social Security appeal may be obtained from the Pro Se Office. The Southern District has
published A Manual for Claimants: How to Appeal a Social Security/SSI Case In the United States
District Court for the Southern District of New York, which explains these procedures. The manual
is distributed to litigants by the Pro Se Office free of charge after they have received a docket number
and Judge in their Social Security cases.
Diversity Jurisdiction, 28 U.S.C. 1332
28 U.S.C. 1332(a) states that [t]he district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest
and costs, and is between (1) citizens of different States . . . . Generally, even if the lawsuit involves
a matter typically handled in state court, if the lawsuit is between citizens of different states and the
amount of damages in question exceeds $75,000, the case may be filed in federal district court based
on diversity of citizenship. In such a diversity of citizenship case, the plaintiff need not claim a
violation of federal law; but in order to satisfy the statutory basis for federal court jurisdiction, there
must be complete diversity of citizenship of all plaintiffs and all defendants, and there must be more
than $75,000 in dispute.
38
Complete diversity, the first requirement, means that at the time the action is commenced, the
plaintiff may not be a citizen of the same state as any defendant. If there is more than one plaintiff
or more than one defendant, all plaintiffs must be citizens of different states from all defendants. If
complete diversity does not exist, the federal court lacks subject matter jurisdiction and, as a result,
the action will be dismissed.
The second element required to invoke the Courts diversity jurisdiction is that the amount
in controversy must be greater than $75,000, exclusive of interest and costs. The amount in
controversy refers to the dollar amount the plaintiff is attempting to recover in actual damages from
the defendant. It is very important that this allegation as to the amount of damages be made in good
faith. If the required dollar amount is not met, the case cannot be heard in federal court, even if
complete diversity of citizenship exists.
As an example, assume a citizen of New York is involved in an automobile accident. That
person sustained substantial injuries requiring extended hospitalization and follow-up treatments.
Medical expenses total $100,000, and the injuries also caused the plaintiff pain and suffering. The
New York citizen decides to file a lawsuit against the driver of the other car, a citizen of New Jersey,
who negligently caused the accident. This type of case, a personal injury claim, is governed by state
law and ordinarily is heard in state court. But, since the parties are citizens of different states and the
amount in controversy exceeds $75,000, a federal district court can hear the case because federal
jurisdiction is present due to the existence of diversity of citizenship. As a second example, assume
that the New York citizen wants to sue both the New Jersey driver of the car and the cars owner, who
is a New York citizen. In that example, there would not be complete diversity of citizenship (since
plaintiff and one defendant are citizens of New York), and so the case could not be brought in federal
court, but could be brought in state court.
39
Venue: In Which Federal Judicial District Should I File My Case?
The term venue refers to the geographic location of the federal court in which a lawsuit
properly may be brought. The federal district courts have very strict rules on where an action may
be filed. Failure to comply with these rules may result in a transfer of the case to another federal court
or dismissal of the case on the basis of improper venue. Therefore, the following venue rules should
be read very carefully to determine where to file an action.
Organization of Federal Judicial Districts
There are four federal judicial districts in New York: the Southern, Eastern, Northern, and
Western Districts. Each district covers specific counties.
The following counties are located in the Southern District of New York: Bronx, Dutchess,
New York (Manhattan), Orange, Putnam, Rockland, Sullivan, and Westchester. The Eastern
District covers the counties of Kings (Brooklyn), Nassau, Queens, Richmond (Staten Island), and
Suffolk. Thus, New York City is the only city in the country to be split between two federal districts.
The Northern District covers the counties of Albany, Broome, Cayuga, Chenango, Clinton,
Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Greene, Hamilton, Herkimer, Jefferson,
Lewis, Madison, Montgomery, Oneida, Onondaga, Oswego, Otsego, Rensselaer, Saint Lawrence,
Saratoga, Schenectady, Schoharie, Tioga, Tompkins, Ulster, Warren, and Washington. The Western
District covers the counties of Allegany, Cattaraugus, Chautauqua, Chemung, Erie, Genesee,
Livingston, Monroe, Niagara, Ontario, Orleans, Schuyler, Seneca, Steuben, Wayne, Wyoming, and
Yates.
40
Generally, in order to determine proper venue for a case, you must know the county where you
reside, where the defendant(s) reside, and where the claim arose. In general, the following rules will
be used to determine the correct federal district court in which to file an action.
Venue for a Federal Question Case
If the case is based on a federal question, that is, a violation of federal law, 28 U.S.C.
1391(b) provides generally for venue in (1) a judicial district where any defendant resides, if all
defendants reside in the same State, (2) a judicial district in which a substantial part of the events
giving rise to the claim occurred, or (3) a judicial district in which any defendant may be found, if
there is no district in which the action may otherwise be brought.
Generally, it is preferable to bring the claim in the district that has jurisdiction over the place
where the claim arose. The determination of where the claim arose usually refers to where the injury
or the events or omissions giving rise to the claim actually occurred.
Venue for a Diversity Case
For a diversity lawsuit, 28 U.S.C. 1391(a) provides for venue in (1) a judicial district where
any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a
substantial part of the events giving rise to the claim occurred, or (3) a judicial district in which any
defendant is subject to personal jurisdiction at the time of the action is commenced, if there is no
district in which the action may otherwise be brought.
If defendants live in different states, you may not file the claim in a district where any
defendant resides, but must file in the federal judicial district where the claim arose. It is important
to note that if the action is based both on diversity and a federal question, the venue provision for a
federal question case applies.
41
Venue for a Corporation
If one of the defendants is a corporation, there is a special rule for determining where the
corporation resides. 28 U.S.C. 1391(c) provides that a defendant that is a corporation shall be
deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the
action is commenced.
In order to determine whether a corporation is doing sufficient business in a particular judicial
district to be subject to personal jurisdiction, a plaintiff may look to the state government to confirm
if a corporation has been incorporated in that state or if it is licensed to do business in that state. In
New York, the Department of State of the State of New York may be able to answer these questions.
You may contact it at:
N.Y.S. Department of State, Division of Corporations
41 State Street
Albany, NY 12231
(518) 473-2492
(900) 835-2677
www.dos.state.ny.us
It is often difficult, however, to ascertain whether a corporation is doing business in a particular
federal judicial district. In general, a corporation is considered to be doing business in a district if it
has a sufficient number of business contacts in that district. 28 U.S.C. 1391(c).
Selected Venue Provisions for Common Statutes
Social Security Appeal 42 U.S.C. 405(g) provides that such an action shall be brought
in the district court for the district where plaintiff resides. For example, if you live in Manhattan, a
Social Security Appeal can be brought in the Southern District.
42
Employment Discrimination Action 42 U.S.C. 2000e-5(f)(3) provides that such an
action can be brought in the district where the plaintiff worked (or applied for work), where the
company keeps its employment records, or in any district in the state in which the alleged
discrimination occurred.
Federal Torts Claims Act Action 28 U.S.C. 1402(b) provides that such an action may
be brought only in the judicial district where the plaintiff resides or wherein the act or omission
complained of occurred.
Freedom of Information Act Action 5 U.S.C. 552(a)(4)(B) provides that an action may
be brought in the district in which the complainant resides, or has his principal place of business, or
in which the agency records are situated, or in the District of Columbia.
Assignment of Cases: Manhattan Courthouse or White Plains Courthouse
The United States District Court for the Southern District of New York has two courthouses:
the Daniel Patrick Moynihan Courthouse located in downtown Manhattan, and the Charles L. Brieant,
Jr. Federal Building and Courthouse located in White Plains. Prisoner civil rights cases and social
security appeals are assigned proportionately to all judges in the Court, whether sitting at the
Manhattan or White Plains Courthouses. For all other cases, if the claim arose in Manhattan or the
Bronx, the lawsuit will generally be assigned to the Manhattan courthouse; if the claim arose in any
of the other counties within the Southern District, the case will generally be assigned to the White
Plains courthouse.
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COSTS OF FILING AN ACTION IN THIS COURT
The filing fee for all civil actions is $350 (except petitions for writs of habeas corpus, for
which there is a $5 filing fee). The Southern District of New York does not accept payment of partial
filing fees. The filing fee should be paid in cash, by credit card (Discover, Mastercard, American
Express or Visa) or by certified check or money order, made payable to the Clerk of Court,
S.D.N.Y. Personal checks are not accepted. Cash is not accepted in cases submitted by mail.
In Forma Pauperis
A plaintiff unable to pay the filing fee must submit an application to waive the filing fee based
on financial hardship. This is called applying for in forma pauperis (IFP) status, and is authorized
by 28 U.S.C. 1915(a)(1).
In order to file for IFP status, at the time the complaint is filed, you must submit to the Pro
Se Office a sworn statement which details certain financial information. The determination whether
to grant or deny the IFP application is made by a Judge, based on demonstrated financial need. A
Request to Proceed In Forma Pauperis is included at the end of this section. This is a sworn
statement and, as such, you are subject to the penalties for perjury if you make a false statement on
this application.
If the Judge grants your application to proceed in forma pauperis, IFP status waives only the
cost of the filing fee and the cost of service of the summons and complaint by the United States
Marshals Service. The grant of IFP status does not waive any other costs involved in the litigation.
For example, a Judge may not waive a non-partys right to receive a witness subpoena fee if called
upon to testify at a deposition or at trial.
44
Since a Judge must rule on each IFP application as it is received, the Pro Se Office cannot tell
you how long this will take. The Judge makes every effort to decide IFP applications as expeditiously
as possible.
Prisoners
In April 1996, the Prisoner Litigation Reform Act (PLRA) became law. The PLRA amends
the in forma pauperis statute and requires prisoners to pay the full filing fee when bringing a civil
action, even if granted IFP status. 28 U.S.C. 1915(b)(1). Prisoners must submit both an application
for IFP status and a Prisoner Authorization form, which authorizes the institution with custody of the
prisoner to withhold and forward payments from the prisoners prison account to the Clerk of Court
until the entire $350 filing fee is paid in full, even if the case is dismissed. Thus, a prisoner may be
granted IFP status, but must ultimately pay the full filing fee. The granting of IFP status will,
however, waive the cost of service of the summons and complaint by the United States Marshals
Service. A copy of the Prisoner Authorization form is included at the end of this section.
Schedule of Fees
filing civil complaint $350
filing habeas corpus petition $5
filing notice of appeal $455
photocopies of documents in
court file
$.50/page
print-out of docket $.50/page
certified copy of document in
court file
$7
witness subpoena fee $40 per day plus travel expenses
45
WRITING AND FILING THE COMPLAINT
This section contains information, sample forms and instructions for use by the pro se plaintiff
for writing and filing a complaint.
In order for you to properly initiate an action in the Southern District, you must write a
complaint and submit it (with two (2) identical copies and the required $350 filing fee, or a Request
to Proceed In Forma Pauperis) to the Pro Se Office. Do not go to the Cashiers Office. It is very
important that you retain copies of all documents you submit in the litigation.
Instructions for starting an action in this federal court are included in this manual.
Additionally, the Pro Se Office has complaint forms for certain types of actions, including a Prisoner
Civil Rights Complaint, for actions brought under 42 U.S.C. 1983 (included at the end of this
section of the manual), an Employment Discrimination Complaint, for actions brought under Title
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, or the Americans
with Disabilities Act (included at the end of this section of the manual); Social Security Disability
Appeals under the Social Security Act (included in the separate Social Security Manual available
from the Pro Se Office); and the General Complaint, which may be used for any complaint that is not
within one of the other categories (included at the end of this section of the manual).
Writing the Complaint
Your complaint must be typed or printed legibly in English on 8 x 11 inch paper, double
spaced, using one side of the page only, and must contain your original, not photocopied, signature.
If there is more than one plaintiff, each plaintiff must sign the complaint.
46
The following sections describe the elements that must be included in a properly drafted
complaint. These elements should appear in your complaint in the order listed below. You should
use these instructions along with the specific or general complaint form included in this manual.
Contents of the Complaint
Caption
The first page of your complaint must begin with a caption. The top of the caption should
state the name of the court in which the action is being filed, that is, the United States District Court
for the Southern District of New York, followed by the names of all plaintiffs and defendants:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
:
Your name, :
:
Plaintiff, : COMPLAINT
:
-against- : Jury Trial Yes Q No Q
:
Names of all people or organizations you are suing, :
:
Defendants. :
---------------------------------------------------------------X
The proper defendants must be named in the caption. For example, a lawsuit brought under
42 U.S.C. 1983 requires that all defendants named in the complaint have some personal
involvement in the alleged incident. It would be incorrect for you to name the prison superintendent
as a defendant simply because that person is in charge of the prison. In employment discrimination
47
cases, the named defendant generally is the company-employer and must be identical to the defendant
named in the charge to and Notice of Right to Sue letter issued by the Equal Employment Opportunity
Commission. In Social Security actions, the correct defendant is the Commissioner of Social
Security. In actions under the Federal Tort Claims Act, the only correct defendant is the United
States.
The first section of the body of the complaint also should identify all defendants and briefly
describe who they are and their involvement in the claim alleged.
In the event that you do not know the name of any defendant, you may refer to that defendant
in the caption as John Doe or Jane Doe. In the first section of the body of the complaint, you should
provide as much information as will help to identify the proper defendant, including his or her
position and, if known, the place and time that the incident occurred. For example, if the defendant
is a prison correction officer, he may be identified in the complaint as Correction Officer John Doe
who was on duty at Green Haven Correctional Facility in A Block at 8:00 p.m. on January 6, 2007.
Although John Does real identity will need to be determined in order to serve the complaint, it is
permissible to find out a defendants identity after the complaint is filed, through the discovery
process.
Jury Demand
In certain kinds of cases, the plaintiff is entitled to a jury trial. However, this right may be lost
if you do not request it within a certain time period. Generally, you may demand a jury trial in writing
up until fourteen (14) days after service of the defendants answer. Fed. R. Civ. P. 38. If this
deadline has passed, the Judge has discretion to grant a jury trial if you make a motion explaining the
reasons why you did not make the jury demand earlier. The easiest way for you to ensure the right
48
to a jury trial, if the type of case so allows, is to make the demand at the time the complaint is
submitted. If you wish to request a jury trial, you should write jury trial demanded on the first page
of the complaint, to the right of the caption, or check the Yes box, as shown on page 46.
Subject Matter Jurisdiction
The next section of the body of your complaint must contain allegations that provide a basis
for the court to assume jurisdiction over the subject matter of your case. This is referred to as subject
matter jurisdiction. For example, in a lawsuit alleging employment discrimination, it is correct to
state This action arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e. You
are not required to know the precise statute under which you seek relief, but you must provide
sufficient facts to enable the court to determine the legal basis for the claim; if you do not, the
complaint will be dismissed. See also Jurisdiction and Venue, on pages 35-42.
Venue
This section of the body of your complaint must contain a statement explaining why the
Southern District of New York is the proper federal court in which to file the lawsuit. For example,
it is correct to state that the Southern District of New York is the proper venue for this lawsuit
because the cause of action arose in Bronx County, which is located in the Southern District of New
York. Refer to page 39 for the list of counties within the Southern District in order to ensure that your
lawsuit is filed in the correct court.
49
Statement of Facts (Rule 8)
This section of your complaint must contain a brief factual description of the event or events
upon which your claim is based. The facts of the case should be described in chronological order,
giving dates and times of each important event, as precisely as possible. The statement of facts also
should include a brief description of what each defendant did or failed to do, and how each
defendants act or failure to act caused you injury, as well as a description of any physical or
emotional injury you sustained and what medical treatment, if any, was required. The facts also can
include the names of other persons involved, dates, and locations of described events. You should
be as specific as possible regarding the facts. For instance, if you do not remember the precise date
that something occurred, it may be narrowed down by stating on or around the fifth day of April
2006.
You should describe each event in a separate, numbered paragraph. Rule 8 of the Federal
Rules of Civil Procedure requires only that you provide enough facts to put the defendant on notice
of what your claim is. But you should be sure to provide sufficient facts to allow the Judge to
determine the precise nature of the claim you are raising, and the personal involvement of each
defendant, especially if you do not state the statute or law that you allege has been violated.
Keep in mind that all lawsuits are subject to a statute of limitations period, which is the time
limit within which a lawsuit must be brought. The statute of limitations is different for every type
of legal claim. You can find the statute of limitations for your particular claim through legal research.
Generally, the time period begins to run at the time the injury or incident occurs, but you must do
legal research to be sure your complaint is timely. If your complaint is filed in federal court within
the statute of limitations period, then the lawsuit is timely. If your complaint is filed after the statute
50
of limitations period has run out, your lawsuit may be dismissed. Also, if one of the defendants was
a John Doe, the timeliness of your lawsuit may be based on the date when that individual is actually
named as a defendant and served with process.
Prisoners Exhaustion
Under the Prisoner Litigation Reform Act (PLRA), prisoners must exhaust all available
administrative remedies in the prison where the complained of incident or condition occurred or is
taking place before filing a complaint in federal court. This means that, as a prisoner-plaintiff, you
must first file a grievance with prison officials and appeal any adverse decision through every
available level of the prison grievance process. Once you have exhausted prison administrative
remedies, you may file a complaint in federal court. When filing that lawsuit, you should include in
the complaint information on whether and how you exhausted the claims in the prison grievance
system, or why you were unable to seek administrative remedies. A form Prisoner Civil Rights
Complaint is included in this manual.
Remedy Sought
This section of the complaint describes what you want the Judge to do if you win. The Judge
has the power to grant different types of remedies. The Judge may order the defendant to compensate
you by paying a specific amount of money. The Judge also, or in the alternative, may order the
defendant to do or to discontinue certain acts; this type of remedy is called injunctive relief. The
Judge has the power to declare that the defendant violated your rights or that a certain statute is
invalid; this type of remedy is called declaratory relief. You should do legal research to determine
what relief you may be entitled to. You should not ask for relief to which you are not entitled under
the law.
51
Signature
At the very end of your complaint, you must type or print your name, address and telephone
number, and sign and date the complaint. Your complaint may be rejected (under Rule 11) or its
filing may be delayed, if you file a complaint without an original signature. Prisoners also should sign
a statement as to when they handed their complaint to prison officials for mailing to the court.
Exhibits
You may attach exhibits to your complaint if they are necessary to support the facts alleged
in your complaint. They should be marked as exhibits (exhibit 1, exhibit 2, etc.) and referred to in
the text of the complaint. It is inappropriate to send the court a pile of documents that are not
specifically mentioned in the complaint. If, however, the document is relevant to the facts in the
complaint, you can include it and explain its relevance in the Statement of Facts section of your
complaint. For example, you should attach your EEOC Notice of Right to Sue letter to your
employment discrimination complaint in a Title VII action. In a suit by a prisoner, you should attach
to your complaint documents showing that you exhausted prison grievance procedures. You generally
should not attach documents to the complaint that merely are evidence supporting your claims; you
will produce those documents during discovery (discussed on pages 79-81, 88-91) but need not attach
such documents to your complaint.
Remember, you should make and keep copies of all papers, including exhibits, that you submit
to the court.
52
Filing the Complaint
After you have drafted the complaint and carefully reviewed it, the next step is for you to file
it with the court through the Pro Se Office. You may file it in person or by mail, by submitting the
signed original and two (2) identical copies of the complaint (including any exhibits) to the Pro Se
Office.
At the time of filing, you also must submit either the civil filing fee or an application for a
waiver of the filing fee, referred to as a Request to Proceed In Forma Pauperis. The procedure for
you to follow to apply for a waiver of the filing fee is explained in the section of this manual on
Costs of Filing an Action in This Court on pages 43-44.
If you pay the filing fee, you are required to fill out a summons and a civil cover sheet, unless
the complaint is sent to the Pro Se Office through the mail. In that case, if the complaint is in order,
the Pro Se Office staff will prepare the summons and civil cover sheet for you. A copy of a blank
Summons and Civil Cover Sheet is included in this section of the manual.
If you submit your complaint to the Pro Se Office by mail, you must enclose a signed original
and two (2) identical copies of the complaint and either the filing fee or a request for its waiver. The
Pro Se Office will review the papers and mail you notification of any incomplete or missing
information or documents. You also will be notified by mail of the Chief Judges decision on your
application for in forma pauperis (IFP) status.
Once the case has been assigned a civil docket number and a Judge, the Court will issue an
order directing that a service package be sent to you, which contains all necessary documents and
instructions on how you should proceed further.
53
SERVICE OF THE SUMMONS AND COMPLAINT ON DEFENDANTS
The Federal Rules of Civil Procedure require that the summons and complaint be served on
all the defendants in the case. This process is referred to as effecting service of process. These
procedures must be followed exactly. If the defendants are not properly served with the summons
and complaint, for instance, the case may not proceed further and may be dismissed. Proper service
of the summons and complaint within 120 days from the date the summons is issued is a crucial first
step in your lawsuit.
Summary
Once a complaint is filed, the Pro Se Office issues a summons containing the signature of the
Clerk of Court and the courts seal. It is a federal criminal offense to change or alter a summons.
Information on the summons should not be crossed out, added to, erased, or whited-out. Each
defendant must be served with a separate copy of the summons and complaint. After every defendant
is served, the back of the original summons must be completed indicating how service was made.
The original summons (the one with the Courts raised seal) along with any other proof of service
(such as a process servers affidavit) is returned to the Pro Se Office for filing.
Parties Permitted to Serve Process (Rule 4(c))
Any person eighteen years or older who is not a party to the lawsuit (that is, not a plaintiff or
a defendant) may serve the summons and complaint. Fed. R. Civ. P. 4 (c)(2). If a party to the action
serves the summons and complaint (except by mail as discussed below), such service is improper, and
therefore invalid.
54
As the plaintiff, you must arrange for service of process, as follows:
For fee paid cases (cases where you have paid the filing fee): Professional process servers are
listed in the Yellow Pages and in The New York Law Journal. Professional process servers may
be costly. You are not required to hire a professional to make service if you have a trusted family
member or friend willing to serve the papers for you. Remember, the person must be eighteen years
or older and not a party to the lawsuit to qualify as an appropriate server.
The remainder of this section will refer to the person who serves process as the process
server, whether that person is a professional process server or someone else.
For IFP cases: If you have been granted in forma pauperis (IFP) status (see pages 43-44),
the United States Marshals Service will serve the summons and complaint for you without
prepayment of service fees. (Their address is on the next page.)
Forms Required for Service
Once the complaint receives a docket number and is assigned to a Judge, the Pro Se Office
prepares a packet of instructions and forms for you, including the papers necessary to serve the
defendants.
In fee paid cases, you will receive:
the original summons (the original has the raised seal of the court);
a copy of the summons for each defendant;
one copy of the complaint (from which you will make copies for service on each
defendant).
55
In IFP cases, you will receive:

the original summons (the original has the raised seal of the court);
a copy of the summons for each defendant;
a copy of the complaint for each defendant;
a certified copy of the order granting IFP status;
one copy of the order granting IFP status for each defendant;
one USM-285 U.S. Marshal service instruction form for each defendant.
If you are not using the United States Marshals Service to make service, you must have one
copy of the summons and one copy of the complaint served on each defendant in accordance with
Rule 4 of the Federal Rules of Civil Procedure. (See pages 57-61 for more information.)
If you wish to use the United States Marshals Service, you must send or deliver the completed
forms, organized into sets of documents for each defendant (e.g., one service instruction form, one
copy of the IFP, one copy of the summons, and one copy of the complaint), to the United States
Marshals Service, whose address is:
United States Marshals Service
500 Pearl Street
4 Floor
th
You must not wait until the end of the 120-day time period to deliver the papers to the
Marshals Service. You should deliver the necessary papers to the Marshals Service as soon as
possible after receiving them from the Pro Se Office. It often takes the Marshals Service 60-90 days
to serve the defendants. You should not wait until the last minute to send the papers to the Marshals
Service; if you do, the Marshals Service may not be able to serve the defendants within your time
56
limits for service (described in the next section). Once you have timely sent the papers to the
Marshals Service, you may rely on the Marshals Service to serve the papers properly. However, if
you do not give the Marshals Service the full name (or other way to identify the defendant, such as
last name and badge number) and an address for serving the defendant, the Marshals Service will not
be able to serve the defendant. If the Marshals Services return of service shows that they were not
able to make service, you will need to provide them with further information.
Remember, the original summons must not be served on the defendant. After service is
accomplished and the process server has completed the back of the original summons stating how
service was made, the original summons (along with any other proof of service) must be returned
promptly to the Pro Se Office for filing. Where the Marshals Service served the defendant, the
Marshals Service will return the proof of service and send you confirmation of service.
Time Limits for Service (Rule 4(m))
You have 120 days from the date stamped on the summons to serve the defendants. Fed. R.
Civ. P. 4(m). If the summons and complaint are not served within the 120-day time period, the Judge
may dismiss your lawsuit. If you are unable to serve all defendants within this 120-day time limit,
you may request in writing (sent to the Pro Se Office) that the Judge give you additional time, stating
the reasons why you need more time. The Judge has discretion to grant a request for more time if
made for good cause and can set a new date by which the defendants must be served.
Frequently, the Judge will issue an order directing you to explain why the defendants have not
yet been served. If you fail to respond to such an order, or if you do not have a sufficient explanation
for the delay in service, the Judge may dismiss your lawsuit. If you have IFP status and you timely
delivered the service papers to the Marshals Service within the 120-day period, but the Marshals
57
Service failed to serve one or more defendants within the 120-day period, you should include this
information in your response to the Judges order.
Rules for Service (Rule 4)
Rule 4 of the Federal Rules of Civil Procedure provides for several methods of service.
Additionally, Rule 4(e)(1) authorizes use of the methods of service described in state law. The United
States Marshals Service ordinarily will attempt to serve individuals, government officials,
organizations, corporations, or partnerships by mail before attempting personal service. If the
defendant does not return the acknowledgment of mail service, the Marshals Service will serve the
defendant by personal service. The Marshals Service is not permitted to effect service on a foreign
state.
The method to be used in a particular case differs depending on the type of defendant being
served. For example, the rules governing service of process on an adult are different from the rules
for service on a minor child or on a corporation.
Waiver of Service of Summons (Rule 4(d))
A plaintiff may choose an alternative to serving the defendant with the summons and
complaint: offering the defendant the option to waive service of the summons. Fed. R. Civ. P. 4(d).
This option provides an inexpensive, efficient alternative to effecting service, and can be used by you
whether you have paid the filing fee to start the action or have been granted IFP status. To serve
under the waiver of service provision, you must mail to the defendants address a copy of the
complaint, two (2) copies of the waiver of service form, and a return, self-addressed, postage-paid
envelope. Service occurs only if the defendant signs and returns the waiver of service form. If you
have not received this signed form from the defendant within thirty (30) days (sixty (60) days if the
58
defendant is outside of the United States) after the date of mailing to the defendant, then you must
have process served by one of the other allowed methods.
Service upon Individuals (Rule 4(e))
If the person being served is a competent adult over the age of eighteen (18), the process
server may serve the defendant, pursuant to Rule 4(e)(2), by:
delivering a copy of the summons and complaint personally to the defendant; or
leaving copies at the defendants dwelling with a person of suitable age and discretion
currently residing at the defendants dwelling; or
delivering copies to an agent authorized by appointment or by law to receive service
of process.
Thus, if a mentally competent adult is being served, the summons and complaint may be
delivered to the defendant personally, left at the defendants home address with a suitable person who
is competent to accept process, or delivered to the defendants agent. If none of these methods are
effective, as a last resort, New York state law authorizes the nail and mail method of service, which
authorizes the process server, after making three (3) attempts at service at different times of the day,
to tape a copy of the summons and complaint to the door of the defendants home or office and to
mail a copy by certified mail, return receipt requested, to the defendants home address. N.Y. Civil
Practice Law & Rules 308(4). The nail and mail method of service is, however, a method of last
resort and is not proper unless the process server has made at least three (3) attempts at personal
service at different hours of the day (after or before business hours).
59
Service upon Minors and Incompetent Persons (Rule 4(g))
To serve a defendant who is a minor (under the age of eighteen (18)), the process server must
personally serve the summons and complaint upon the minors parent, guardian, custodian or adult
spouse or, if none are within the state, upon any other person with whom the minor resides or by
whom the minor is employed. If the minor is at least fourteen (14) years old, the minor must also be
personally served. Fed. R. Civ. P. 4(g); N.Y. Civil Practice Law & Rules 309(a). Judicially
declared incompetent persons and conservatees must be personally served along with the appointed
committee or conservator. N.Y. Civil Practice Law & Rules 309(b), (c).
Service upon Corporations and Associations (Rule 4(h))
Service may be made on a business, corporation or partnership by the process server
personally delivering the summons and complaint to an officer or other person authorized by the
company to receive process. Usually, this means the president, vice president, or a person specifically
designated by the company to receive process. In contrast, a receptionist or secretary may not be
authorized by the company to accept service of process, even if that person receives other mail or
packages. To determine who is authorized to accept service of process, the process server should call
the company to ask who is authorized or designated to accept service of process for the company.
The process server also may contact the New York State Department of State, Division of
Corporations, for this information at (518) 473-2492. This information also is available on the
New York Department of States website: www.dos.state.ny.us.
If the defendant is a corporation, service may be made on the New York Secretary of State,
in Albany, New York, if the corporation is incorporated or licensed to do business in New York State.
This is done by delivering, not mailing, the papers to the Secretary of States office located at 41 State
60
Street in Albany, New York. There is a fee for serving the Secretary of State on behalf of a
corporation.
Service upon the United States and its Agencies or Officials (Rule 4(i))
If the United States government is a defendant, the summons and complaint must be delivered
to the United States Attorney for the Southern District of New York or to an employee of that office
who is authorized to received process on its behalf. The next step is to mail a copy of the summons
and complaint to the Attorney General of the United States, Department of Justice, 950 Pennsylvania
Avenue N.W., Washington, D.C. 20530-0001, by registered or certified mail. Fed. R. Civ. P.
4(i)(1)(B). If the lawsuit is against a United States government official or agency, the procedure
described above must be followed, and a copy of the summons and complaint also must be sent to
the official and to the chief of the agency or other person authorized to receive process on the
agencys behalf. For example, in an action brought against the Department of Health & Human
Services, process must be served on the U.S. Attorney, the Attorney General, and the Secretary of the
Department of Health & Human Services, or the person authorized by the agency to receive service.
Service upon State, Local or Foreign Governments (Rule 4(j))
In a lawsuit brought against New York State, a copy of the summons and complaint must be
delivered to the Office of the Attorney General of the State of New York, 120 Broadway, New York,
N.Y. 10271. N.Y. Civil Practice Law & Rules 307. In a lawsuit against the City of New York, the
summons and complaint must be delivered to The Law Department of the City of New York, Office
of the Corporation Counsel, 100 Church Street, New York, N.Y. 10007. N.Y. Civil Practice Law &
Rules 311(2). If a state or local government official is a defendant, the official must be served,
along with the chief of the agency or other person authorized to receive process on the agencys
behalf.
61
Proof of Service (Rule 4(l))
After service has been made, the person(s) who served process must complete the return of
service on the back of the original summons where it says declaration of server, affirming under
penalties of perjury that service has been made and describing the details of the service. Once the
original summons with return of service is completed, it must be filed promptly with the Pro Se
Office. In addition, if the waiver of service of summons and complaint have been served by mail, the
signed waiver of service form executed by the defendant must be submitted to the Pro Se Office as
proof that service was effected.
62
SERVICE AND FILING OF PLEADINGS AND COURT PAPERS
AFTER SERVICE OF THE COMPLAINT: RULE 5
All court papers served after the filing and service of the complaint, and all letters to the
Judge, must be served on each defendant. Fed. R. Civ. P. 5. If an attorney has appeared for a
defendant, that attorney must be served instead of serving the party. The Pro Se Office cannot accept
any papers without an attached Affirmation of Service. Including a cc on the face of the document
indicating that the defendant was sent a copy does not satisfy this service requirement. All parties
listed in the caption must be served, except parties in default unless new or additional claims are
asserted against them. Fed. R. Civ. P. 5(a).
Anyone eighteen (18) years or older, including a party to the lawsuit, may serve the other side.
Thus, after service of the complaint, you may serve motions, letters and other court papers on the
other side. Service of court papers (other than the complaint) and letters may be made by hand
delivery or regular or priority mail.
Once an attorney has appeared for a party, service of court papers and letters is to be made to
the attorney rather than the party.
Proof of service of court papers (other than the complaint) and letters should be in the form
I certify under penalty of perjury that I mailed [or delivered] a copy of [name of document] to
counsel for the opposing party, [give the lawyers name and address], on [date], and be signed and
dated by whoever made the service. A form Affirmation of Service is included in this section of the
manual.
63
AMENDED COMPLAINTS
If you have failed to state important facts or legal claims in the original complaint, discover
a new and significant fact, or want to add additional defendants or provide the real name of a John
Doe defendant, you will need to file an amended complaint.
An amended complaint does not simply add to the first complaint. Once an amended
complaint is filed, it completely replaces the original. Therefore, it is important that you include in
the amended complaint all the necessary information that was contained in the original complaint.
You may file and serve one amended complaint without obtaining the Judges permission.
Fed. R. Civ. P. 15(a). If you want to file a second amended complaint, you must obtain either the
defendants written consent or the Judges permission in order to amend the complaint. To obtain
the Judges permission, you must make a motion requesting the permission to amend the complaint.
You must attach to the motion a copy of your proposed amended (or second amended) complaint.
See also Motion Practice, on pages 108-21.
You may amend your complaint within twenty-one (21) days after serving your original
complaint. If the defendant files an answer, your time to amend your complaint is extended until
twenty-one (21) days after the answer is served upon you. If the defendant files a motion to dismiss
pursuant to Fed. R. Civ. P. 12(b), (e), or (f), you may amend your complaint within twenty-one (21)
days after the motion is served upon you. See Fed. R. Civ. P. 15(a).
Filing and Service of Amended Complaint
If the amended complaint does not include any new defendants and is made before any
defendant has been served, the amended complaint must first be filed with the Pro Se Office and
served on each defendant with the original summons in accordance with Rule 4. See Service of the
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Summons and Complaint, on pages 53-61. After service, the original summons and any other proof
of service must be returned promptly to the Pro Se Office for filing.
If new defendants have been added before any defendant has been served, the amended
complaint must first be filed with the Pro Se Office. The Pro Se Office will issue an amended
summons and send you a new packet of instructions and forms necessary for service on the
defendants. The amended summons and the amended complaint must be served on each defendant
in accordance with Rule 4. Again, once service is completed, the original amended summons and any
other proof of service must be returned promptly to the Pro Se Office for filing.
If the complaint is amended after some defendants have been properly served with the original
complaint and summons but before other defendants have been properly served (or if new defendants
have been added), all the defendants who had previously been properly served should be sent, by
ordinary first-class mail, a copy of the amended complaint. (If counsel has appeared for a defendant,
it should be mailed to the attorney.) The amended complaint must then be filed with the Pro Se
Office with an Affirmation of Service. The remaining defendants including defendants not yet
served or newly added defendants must be served with the amended complaint and the summons
in accordance with Rule 4. After service on the remaining defendants, the original summons and any
other proof of service must be returned to the Pro Se Office for filing.
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ANSWER
The prior sections of this manual are directed largely to the pro se plaintiff. This section is
directed to the pro se defendant. Thus, references to you mean the pro se defendant. This section
also provides information for the pro se plaintiff as to what to expect from any defendant in response
to the complaint.
After the plaintiff has served a copy of the summons and complaint on the defendant (see
pages 53-61), the defendant must file an answer or make a motion to dismiss the complaint.
An Answer
An answer is a formal written response to the plaintiffs complaint in which the defendant
responds to all of the allegations in the complaint and sets forth any defenses to all or part of
plaintiffs claims. In your answer, you must deny each statement in the complaint that is untrue and
admit each statement that is true. Therefore, it is important that you (the defendant) read the
complaint carefully. A form Answer is included in this section of this manual.
Responses to the Complaints Allegations
You should answer each paragraph in the complaint in a separate, correspondingly numbered
paragraph in the answer. For example, paragraph 3 of the answer should respond to paragraph 3 of
the complaint. In addition, each sentence in each paragraph of the answer should correspond, as
closely as possible, to the order of the sentences in that paragraph of the complaint. For example, if
paragraph 2 of the complaint alleges: Defendant is an officer of X company. The principal place of
business of X Co. is in New York, New York, an appropriate response might be a statement in
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paragraph 2 of the answer that The defendant admits that he is the president of X company.
Defendant denies that X Co.s principal place of business is in New York, New York.
You (defendant) may not have enough information to admit or deny an allegation contained
in the complaint. In that case, you (defendant) should state that, due to a lack of sufficient
information or knowledge, you are unable to admit or deny the allegations contained in a certain
numbered paragraph of the complaint.
Defenses
In addition to responding to the allegations in the complaint, your answer to the complaint
should raise any defenses that you (defendant) have to the complaint. In general, the defendant has
a defense to a lawsuit if, even assuming the truth of the allegations in the complaint, the law does not
permit the plaintiff to win the case. For example, assume that in 2006, plaintiff filed a complaint
under 42 U.S.C. 1983, alleging civil rights violations that occurred in 2001. Since, in New York,
claims under 1983 must be filed within three years of the occurrence of the event, the claim based
on the 2001 occurrence would be barred by the statute of limitations. Defendants answer should
assert an affirmative defense of the statute of limitations.
Under Rule 12(b) of the Federal Rules of Civil Procedure, certain defenses are waived if they
are not asserted in the answer or in a pre-answer motion. For example, suppose that a defendant
believes that venue, which is the particular place where the complaint was filed, is improper. The
defendant must assert a defense of improper venue in the answer or in a pre-answer motion. If the
defendant fails to raise this defense in the answer or pre-answer motion, the defendant will be unable
to raise this defense at all.
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Counterclaims Against the Plaintiff
In addition to any defenses the defendant may have, the defendant may raise a counterclaim
in the answer. A counterclaim is a claim that the defendant has against the plaintiff and arises out of
the same transaction stated in the complaint. A counterclaim must be included in the defendants
answer or it is waived. For example, if the plaintiff has sued the defendant for breach of contract, the
defendant may counterclaim, as a separate allegation, that in fact it was the plaintiff who breached
the contract and that therefore the plaintiff owes the defendant a sum of money.
Cross-Claims Against Other Defendants
An answer may also contain a cross-claim, in which a defendant makes a claim against
another defendant who plaintiff named in the complaint. If you believe that another defendant is
responsible for all or some of the damages claimed by the plaintiff, then you may file a cross-claim
against the other defendant. In other words, a cross-claim is a lawsuit by one defendant against
another defendant within the original lawsuit based on the same dispute. If the plaintiff has named
only one defendant in the complaint, there can be no cross-claim.
Third-Party Claims
The answer also may contain a third-party claim, under Rule 14 of the Federal Rules of Civil
Procedure, in which the defendant alleges that new parties to the lawsuit, called third-parties, are
responsible for the relief sought by the plaintiff. For example, if plaintiff alleges that defendant
caused plaintiffs injuries, and the defendant claims it was not his fault but someone elses fault
someone who is not already a defendant in the lawsuit the defendant can assert a third-party claim
against that new party. A third-party summons will be issued by the Pro Se Office and the
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defendants claim against that new, third-party must be served just like a complaint. See also
Service of the Summons and Complaint, on pages 53-61.
Motion to Dismiss
Although most of a defendants defenses to a complaint are stated in the answer, a defendant
has the option of asserting certain defenses in a motion to dismiss before filing the answer. Certain
defenses must be asserted in a motion to dismiss or they are lost. A motion is an application to the
Judge asking that the Judge take some particular action. The procedure for making a motion is
explained fully in the section entitled Motion Practice on pages 108-21.
Under Rule 12 of the Federal Rules of Civil Procedure, a motion to dismiss the complaint may
contain the following arguments: (a) the court lacks the power to decide the subject matter of the
case; (b) the court lacks personal jurisdiction over the defendant; (c) venue is not proper so plaintiffs
case should not be in the Southern District of New York; (d) service of process on the defendant was
not proper; (e) the complaint fails to state a claim which the law will recognize as enforceable; and/or
(f) the plaintiff has failed to join a needed party. Motions to dismiss under Rule 12 are explained
more fully in the section entitled Motion Practice, on pages 108-21.
It is very important for the plaintiff to respond to a motion to dismiss; otherwise, the case may
be dismissed without the plaintiff having an opportunity to present an argument to the Judge. If the
motion to dismiss is granted, plaintiffs complaint is dismissed and the case is over. If the motion to
dismiss is denied, the defendant must answer the complaint.
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Time Limitations to Respond to a Complaint, Counterclaim or Cross-Claim
The defendant must respond to the complaint by filing an answer or a motion to dismiss
within twenty-one (21) days (sixty (60) days if the defendant is the United States or an agent thereof).
A defendant (other than the United States) that has waived service under the procedure in Federal
Rule of Civil Procedure 4(d) (discussed on page 57) has thirty (30) days after sending the waiver to
file an answer or motion to dismiss.
If no response to the complaint is filed within the required time period, the plaintiff should
file a motion for a default judgment. A form for a Motion for Default Judgment is included in this
manual.
If the defendants answer contains a counterclaim, the plaintiff must respond to the
counterclaim within twenty-one (21) days after being served.
If a defendant is served with an answer from another defendant that contains a cross-claim,
that defendant must serve a response within twenty-one (21) days. The response to a cross-claim or
counterclaim follows the same format as an answer.
Unless the answer contains a counterclaim, the plaintiff is neither required to nor permitted
to file any further pleading in response to the answer.
If the defendant makes a motion to dismiss the complaint, the plaintiff has fourteen (14) days
after service of the motion to respond to the motion. The defendant has seven (7) days after being
served with plaintiffs opposition to the motion to file a reply. If the defendants motion to dismiss
is denied, the defendant generally will be required to answer the complaint within fourteen (14) days
after the Judge decides the motion, unless the Judge sets a different date for when the defendants
answer is due.
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Extension of Time to Respond to the Complaint, Counterclaim or Cross-Claim
If more time is needed to respond to the complaint, counterclaim or cross-claim (by answer
or motion to dismiss), a defendant may request an extension of time to respond to the complaint.
Prior to asking the Judge for an extension of time, the defendant should ask the plaintiff or his or her
attorney to stipulate, that is, agree, to an extension of time to file the response to the complaint. If
plaintiff does not consent, the defendant must ask the Judge for an extension of time.
Procedure for Filing the Answer or Motion to Dismiss the Complaint
Once the defendant has prepared the answer or motion to dismiss, a copy must be served on
the plaintiff (plaintiffs attorney if an attorney has appeared for the plaintiff), either by personal
delivery or ordinary mail. The next step for the pro se defendant is to attach an Affirmation of
Service to the original answer (or motion) and file it with the Pro Se Office.
If the Judges Individual Practices require that courtesy copies be furnished to chambers, the
defendant should submit the courtesy copies to the Pro Se Office at the same time as the answer or
motion is filed; the Pro Se Office will deliver the courtesy copies to the Judge.
Failure to File a Response to a Complaint: Default Judgments
If a defendant who has been properly served fails to respond to the complaint (by answer or
motion), the plaintiff may request a default judgment for the relief requested in the complaint. A
default judgment can be entered by the Judge against a defendant who has been properly served and
has failed to respond to the complaint. A form for use in preparing a Motion for Default Judgment
is included in this manual.
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A defendant who has defaulted may file a motion to vacate the default judgment under Rule
60 of the Federal Rules of Civil Procedure. The Judge may set aside a default judgment if the
defendant shows good cause for having defaulted.
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MAGISTRATE JUDGES
There are two types of Judges in the Southern District of New York (and the other federal
district courts): United States District Judges and United States Magistrate Judges. District Judges
are appointed for life terms by the President with the approval of the United States Senate pursuant
to Article III of the Constitution. United States Magistrate Judges are appointed by the Board of
District Judges of the Southern District of New York for terms of eight (8) years, and may be
reappointed at the expiration of the term. Magistrate Judges are judicial officers who are authorized,
pursuant to 28 U.S.C. 636, to conduct any and all proceedings in civil cases, including a jury or non-
jury trial, and to order the entry of a final judgment.
When the complaint is filed and a case is assigned a docket number and a District Judge, a
Magistrate Judge is designated at random as well. The Magistrate Judge designated to your case
will not be involved in your case, however, unless the District Judge enters an order referring all or
part of your case to the Magistrate Judge.
The parties consent is not needed for the District Judge to refer the case to the Magistrate
Judge for non-dispositive purposes (that is, for purposes other than trial or final decisions on motions
that seek to dispose of a legal claim or defense). Referring cases to the Magistrate Judge is a fairly
common practice, and is within the discretion of the District Judge. It is common for the District
Judge to refer a case to the Magistrate Judge for general pretrial supervision (that is, to supervise
discovery, set schedules, and try to settle the case). Other references may be limited for only
supervision of discovery, or for settlement purposes. Where a case is referred to a Magistrate Judge
for general pretrial purposes, that means that all pretrial issues regarding scheduling, requests for
extensions of time, discovery proceedings and disputes, the schedule for the filing of motions, and
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settlement, all should be addressed to the Magistrate Judge. Letters about such matters should not
be sent or copied to the District Judge.
Rules 72 and 73 of the Federal Rules of Civil Procedure, and 28 U.S.C. 636, describe the
Magistrate Judges role in civil lawsuits.
Consent to Proceed Before a Magistrate Judge for All Purposes Including Trial
If all parties to the lawsuit consent, the lawsuit may be heard for all purposes by the Magistrate
Judge, pursuant to 28 U.S.C. 636(c). That means that the Magistrate Judge not only will set the
schedule and resolve all discovery disputes, but also that the Magistrate Judge will decide all motions
and conduct the trial of the case, with a jury if either party is entitled to and has requested a jury trial.
A Consent to Proceed Before a Magistrate Judge form is included in this manual.
There are a number of benefits to consenting to proceed before a Magistrate Judge for all
purposes. Perhaps the greatest benefit is time. District Judges are required to give priority to felony
criminal trials, which often are lengthy and complicated. If you consent to proceed before the
Magistrate Judge, you will find that your lawsuit generally proceeds with greater speed than if the
case were before the District Judge. Because Magistrate Judges are not affected by the scheduling
requirements imposed by felony criminal cases, generally the pretrial and discovery conferences and
trial will occur sooner, and on a specified date, before the Magistrate Judge. In other words, your
legal rights are the same before the District Judge or the Magistrate Judge, but generally your case
will proceed to trial faster if you have consented to have your case heard before the Magistrate Judge.
You have the same right to a jury in a trial before a Magistrate Judge as you would have in a trial
before a District Judge.
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In cases where the parties have consented to proceed before the Magistrate Judge for all
purposes, the Magistrate Judge issues orders and opinions, and any appeal from the Magistrate
Judges decision is directly to the United States Court of Appeals for the Second Circuit. See also
Appeals, on pages 136-42.
Orders Issued By the Magistrate Judge
In cases where the parties have not consented to proceed before the Magistrate Judge for all
purposes, and the case has been referred by the District Judge to the Magistrate Judge, the Magistrate
Judge may issue an order (and/or opinion) on any issue (such as a discovery dispute) that does not
dispose of a claim or defense of a party. If you disagree with the Magistrate Judges order, you must
serve and file objections within fourteen (14) days. Objections should be sent to the Pro Se Office
for filing, along with courtesy copies for both the District Judge and the Magistrate Judge. If you do
not object to the Magistrate Judges order within that fourteen (14) day period, you may not later
object to the order. The District Judge will consider any objections filed and set aside or modify the
Magistrate Judges order only if it is clearly erroneous or contrary to law. Note, however, that you
are required to obey any order of a Magistrate Judge even if you have filed objections, unless you
obtain a stay of the order from the Magistrate Judge or the District Judge.
For matters that do dispose of a claim or defense such as a motion to dismiss or a motion
for summary judgment if the parties do not consent to the referral of the matter to the Magistrate
Judge for all purposes, the Magistrate Judge will not issue an order on the matter, but instead will
issue a Report & Recommendation to the District Judge.
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Objections to a Magistrate Judges Report & Recommendation
If you disagree with the Magistrate Judges Report & Recommendation, you must object in
writing to any or all of the contents of the Report & Recommendation within fourteen (14) days of
service of the Report & Recommendation. You must serve all parties with your objections, attach
a completed Affirmation of Service, and you must file all objections with the Pro Se Office and
include courtesy copies for both the District Judge and the Magistrate Judge. All objections should
be captioned Objections to Report & Recommendation. You must clearly connect your objections
to specific recommendations and explain why you object to any particular recommendation. The
other side may respond to your objections within fourteen (14) days after being served.
The District Judge will make a final decision, relying on the Magistrate Judges Report &
Recommendation and the parties objections. The District Judge may adopt the Magistrate Judges
findings in full or in part, or may decline to adopt the Report & Recommendation and issue an entirely
new decision. If the District Judges decision results in a final disposition of your case, you may
appeal to the United States Court of Appeals for the Second Circuit. See also Appeals, on pages
136-42.
Further information regarding the Report & Recommendation process may be found in Rule
72 of the Federal Rules of Civil Procedure and 28 U.S.C. 636(b)(1)(C).
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PRETRIAL CONFERENCES
The Judge may schedule a number of pre-trial conferences in your case.
A pre-trial conference typically is held in the Judges courtroom with the parties or their
lawyers present. In prisoner cases, the conference may be held by telephone. Generally, there are no
witnesses to give testimony and no evidence submitted. Rather, the pro se party, opposing counsel
and the Judge meet to discuss and resolve scheduling or discovery issues or other matters. Scheduling
of conferences is not automatic; it is up to the Judge whether and when to hold conferences.
Once the defendant has filed an answer to the complaint, or after there has been a decision on
a motion to dismiss the complaint, the Judge may schedule an initial case management conference,
also known as a Rule 16 conference or scheduling conference. Later conferences may be held to deal
with changes to the schedule, to try to settle the case, or to resolve discovery disputes.
The Initial Case Management Conference (Rule 16)
The initial case management conference often is the first opportunity for you and opposing
counsel to meet with the Judge and briefly describe the nature of your claims and the defendants
defenses. The Judge will discuss discovery and the parties discovery plan (if there is one), and
whether the case can be settled at an early date. The Judge may enter a scheduling order setting
deadlines for amendment of the pleadings, motions and the completion of discovery.
At least twenty-one (21) days before the initial case management conference, you should meet
(in person or by telephone) with opposing counsel to discuss settlement, develop a proposed discovery
schedule and plan, and arrange for service of initial disclosures pursuant to Rule 26(a)(1) (as
described on pages 79-81). Fed. R. Civ. P. 26(f). Fourteen (14) days after this conference between
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the parties, the parties are to submit a joint discovery plan to the Judge. Fed. R. Civ. P. 26(f). That
plan will be discussed at the initial case management conference. In some cases, the Judge will
approve the discovery plan without holding a conference.
Discovery Conferences
Under Local Rule 37.2, before a discovery motion may be filed, you must request a conference
with the Judge. This is done by writing a letter to the Judge, serving the letter on opposing counsel,
and submitting the letter (with an Affirmation of Service) to the Pro Se Office to forward to the
Judge. The letter should describe the nature of the discovery dispute and your position. Often, the
Judge will schedule a conference to try to resolve the discovery dispute. If such a conference is
scheduled, you should bring copies of the discovery that is in dispute and be prepared to tell the Judge
about your position as to the discovery. For example, if you served a request for documents on the
other side and that party objected to some of your requests, you should bring to the conference your
document request, the other sides response, and any letters you wrote to try to resolve the dispute,
and you should be prepared to tell the Judge why you need those documents for your case.
The Final Pretrial Conference
After discovery has been completed and the Judge has ruled on any summary judgment
motions or other pretrial motions, the Judge generally will schedule a Final Pretrial Conference to
discuss trial-related matters, including the number of days needed for trial, the identity of trial
witnesses and identification of trial exhibits, and any objection to the other sides witnesses or
exhibits, as revealed by the Pretrial Order required by Rule 26(a)(3) of the Federal Rules of Civil
Procedure.
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Conduct at All Conferences
When attending a conference, all parties should show respect for the Judge by dressing neatly
and being on time. A conference may be held in the courtroom or in a conference room. If the
conference is held in the courtroom, the Judge will sit on the bench and the parties will sit at the
tables. Generally, when the tables are side-by-side, the plaintiff sits at the table closest to the jury
box; where the tables are in front of each other, the plaintiff sits at the front table. The Judges deputy
clerk will direct you where to sit. At times, particularly where the pro se party is incarcerated or does
not live in the New York area, the Judge may hold a conference on the telephone.
Whenever you speak to the Judge, you should stand. It is customary to begin by saying Good
[morning or afternoon], Your Honor, my name is [your name] and I am the [plaintiff or defendant]
in this case. Whether in the courtroom or in a conference room, whenever you speak to the Judge,
it is customary to refer to the Judge as Your Honor.
After introductions, you should be prepared to answer the Judges questions completely. The
other side also will have the opportunity to answer the Judges questions. You should not interrupt
the person who is speaking, and you never should interrupt the Judge. When the Judge is finished
asking questions, the Judge usually will ask if the parties have anything else they want to discuss.
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DISCOVERY: INTRODUCTION & INITIAL DISCLOSURES
Introduction to Discovery
Discovery is the process of collecting the evidence necessary to support a claim or defense.
During discovery, you may uncover relevant facts and identify documents and witnesses whose
testimony can establish those facts. You may obtain evidence from the other parties to the litigation
(the plaintiff and defendant), non-parties, and public records.
The discovery process is designed to go forward between the parties, with minimal
involvement by the Judge. Only if the parties have disputes or disagreement about the proper scope
of discovery and cannot resolve the problems themselves, will the dispute be raised before the Judge.
Federal Rule of Civil Procedure 5 and Local Civil Rule 5.1 provide that discovery requests
and responses should not be filed with the Court unless directed to do so by the Judge. Therefore,
discovery requests, responses, and produced documents should be sent only to the parties to the case,
and not to the Pro Se Office for filing.
As with all papers in your case, you should keep copies of all discovery materials that you
serve on other parties and that you receive from the other parties.
Mandatory Initial Disclosures (Rule 26(a)(1))
At the very beginning of the lawsuit, unless the case is in a category that is excluded, each
party must automatically provide certain information and documents to all other parties, without the
need for a request. This is referred to as initial disclosures.
Rule 26(a)(1)(B) excludes nine categories of lawsuits from initial disclosures. In general,
cases filed pro se by prisoners and Social Security appeals are excluded from initial disclosures. In
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general, all other pro se cases are required to make initial disclosures. For example, a pro se plaintiff
who is not in prison and who is suing a police officer must provide initial disclosures to defense
counsel. As another example, a pro se plaintiff alleging employment discrimination under Title VII
must make initial disclosures. In contrast, a case brought by pro se prisoner alleging excessive force
by correction officers is exempt from initial disclosures requirements.
The Content of Initial Disclosures
Initial disclosures are information that you have to provide early in the case to all other parties
to the case, without a request from your adversary. Your initial disclosures must be served within
fourteen (14) days after the Rule 26(f) meet and confer conference, unless: (1) the parties stipulate
(agree) to a different time; or (2) the Judge orders a different time; or (3) a party objects during the
conference that initial disclosures are not appropriate under the circumstances of the lawsuit, and
states the objection in the proposed discovery plan.
You must provide the following initial disclosure information to all other parties in the
lawsuit:
(1) The name, address and telephone number of each individual likely to have information
that you may use to support your claims or defenses and the type of information each of those
individuals have.
(2) A copy of all documents (including emails or other electronically stored information)
that is in your possession or control that you may use to support your claims or defenses.
(3) A calculation of the damages you are claiming. You also must provide documents that
support your calculation of damages, including documents showing the nature and extent of
any injuries.
(4) The defendant must provide copies of any insurance agreements which may apply to
any award of damages in the lawsuit.
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In summary, your mandatory initial disclosures must identify your witnesses, provide copies
of all documents that you have that you believe support your case, and provide a calculation of the
damages you claim.
Your initial disclosures must be made in writing, must be signed by you, and must be served
on all other parties, but it should not be filed with the Pro Se Office.
You must serve your initial disclosures on all other parties to the lawsuit even if you have not
completed your investigation of the case. You must serve your initial disclosures even if you think
that the other partys initial disclosures are inadequate, or even if the other party failed to provide any
initial disclosures at all.
In all aspects of discovery, you must comply with your disclosure and discovery obligations
even if you believe the other party has not complied with their discovery obligations.
If after providing initial disclosures you learn that your information is incomplete or incorrect,
you must promptly supplement or correct your initial disclosures.
If you fail to comply with your initial disclosure obligation, you generally will not be allowed
to use witnesses or documents that you did not disclose to the other party. For example, if you
identify yourself and John Watson as your witnesses, you will not be able to call Irene Adler to testify
for you at trial or on a motion. Similarly, if you fail to provide copies of certain documents to the
other party, you generally will not be allowed to offer them into evidence at trial or on a motion.
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SCOPE OF DISCOVERY IN GENERAL: RULE 26(B)
Rule 26(a)s mandatory initial disclosures are automatic you must make the disclosures
described in the prior section without any request from the other party. Discovery under Rule 26(b)
of the Federal Rules of Civil Procedure is different unless you ask the other party in writing for
documents or information, the other party need not give it to you.
Rule 26(b)(1) of the Federal Rules of Civil Procedure states that you may obtain discovery
regarding any non-privileged matter that is relevant to the claim or defense of any party to an action.
Material is relevant to a claim or defense if it is reasonably likely to lead to the discovery of
admissible evidence.
You must review Rules 26 through 37 and Rule 45 of the Federal Rules of Civil Procedure,
which provide the primary methods for pretrial discovery, and the Southern Districts corresponding
Local Civil Rules. In particular, Local Rule 26.3 provides uniform definitions of certain general
terms that apply to all discovery requests.
Although the scope of discovery under the Federal Rules is quite broad, there are some
limitations. You are not permitted to seek discovery of privileged or otherwise protected information
or of documents that an attorney prepared for trial or in anticipation of litigation. The most common
privilege is the attorney-client privilege, which applies to a party that is (or was) represented by an
attorney. A party that asserts a claim of privilege in objection to discovery must follow the
procedures outlined by Local Civil Rule 26.2.
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In addition, the Judge may limit discovery in a specific case, in particular when:
(1) a party unreasonably seeks information that has already been provided, or that
is already available from some other source which is more convenient, less
burdensome, or less expensive; or
(2) The burden or expense of the proposed discovery outweighs its likely benefit,
taking into account the needs of the case, the amount in controversy, the parties
resources, the importance of the issues at stake in the litigation, and the importance
of the proposed discovery in resolving the issues.
Federal Rule of Civil Procedure 26(e)(2) requires that you supplement or correct your
responses to any discovery request if you later learn that the response is incomplete or incorrect.
In cases that must comply with the initial disclosures under Rule 26(a), discovery under Rule
26(b) cannot begin until the parties have their Rule 26(f) meet and confer conference, unless all
parties agree that discovery can begin earlier, or the Judge orders earlier discovery. For cases that are
exempt from mandatory initial disclosures under Rule 26(a)(1)(B), including cases filed by pro se
prisoners, discovery generally may begin as soon as a defendant has filed an answer.
Methods of Discovery: Introduction
The Federal Rules of Civil Procedure provide the following methods of discovery:
(1) interrogatories (Rule 33); (2) requests for production of documents (including electronically stored
information) (Rule 34); (3) requests for mental or physical examinations (Rule 35); (4) requests for
admissions (Rule 36); and (5) depositions (Rules 30 and 31). Each method is designed to obtain
different types of information. The different discovery methods may be used in any order or at the
same time. Some methods are less costly than others. Some discovery methods are more user-
friendly as a practical matter for a pro se party. The following sections discuss these discovery
methods.
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DISCOVERY: INTERROGATORIES (RULE 33)
Interrogatories are written questions that you may ask any other party to the case.
Interrogatories may be used to discover information only from parties to the litigation. See Fed. R.
Civ. P. 33. You may not use interrogatories to obtain information from non-parties. You also may
not direct the interrogatories to a specific employee of a corporate party; the corporation determines
who will answer the interrogatories on its behalf.
Under Local Civil Rule 33.3, unless otherwise ordered by the Judge, you may use
interrogatories at the start of discovery only to: (1) find out the names of witnesses who may have
information about the case; (2) calculate the type of damages alleged; and (3) discover the existence
of documents relating to the case. During the course of discovery you may serve interrogatories
seeking additional types of information only if interrogatories are a more practical (that is, better) way
of obtaining the information rather than another method of discovery (such as a document request or
deposition). For example, a pro se plaintiff alleging that he was beaten and falsely arrested by a
police officer properly could use interrogatories at the start of discovery to ask the City to provide the
names of all police officers present at the incident, as well as information regarding whether any of
the officers prepared a written report of the incident; in contrast, interrogatories could not be used at
the beginning of discovery to learn what each officer did during the incident.
You may serve no more than twenty-five (25) interrogatories on any one party, unless the
Judge gives you permission to serve more. You cannot avoid the twenty-five (25) interrogatory limit
by asking several questions within one interrogatory. If an interrogatory has separate subparts, each
subpart is counted as an interrogatory. You may serve different interrogatories on different parties.
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For example, if there is more than one defendant, you may serve up to twenty-five (25) interrogatories
on each defendant. Each written question or subpart counts as one interrogatory.
You should not use interrogatories merely to identify documents that the opposing party may
have. Document requests (see pages 88-91) are a better way to obtain documents (and electronically
stored information) from the other side. Document requests are not limited to twenty-five (25)
questions as interrogatories are. You should not waste your limited number of interrogatories by
using them to obtain documents.
While interrogatories are limited to twenty-five (25), where a pro se party does not take any
depositions, upon written request, some Judges may be willing to allow the pro se party more than
twenty-five (25) interrogatories.
Answers and Objections to Interrogatories
If the other party sends you interrogatories, you must respond to the interrogatories in a sworn,
signed statement within thirty (30) days. Fed. R. Civ. P. 33(b). If you need more time to respond to
interrogatories served on you, you may request an extension of time from the party that served the
interrogatories; if that party will not agree to give you more time to answer the interrogatories, you
may file a motion with the Pro Se Office asking the Judge to give you additional time to respond.
You must answer each interrogatory separately and fully, unless you have an objection to the
interrogatory. You may respond by answering an entire interrogatory question or by objecting to the
question or part of the question. If you object to part of a question, you must answer the rest of that
interrogatory question. You must state any objections in writing, including the reasons for your
objection. If you do not understand what is being asked of you, you should first try to discuss it with
the other party, rather than objecting.
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If the other party believes that your objection is incorrect or unreasonable, that party may make
a motion to the Judge under Rule 37(a) of the Federal Rules of Civil Procedure, requesting an order
directing you to answer the interrogatory. Before any such motion is made, however, the parties must
discuss the request and the objection to try to resolve the dispute before bringing it to the Judges
attention.
You must answer an interrogatory with all the information that you have available. Under
Rule 33(d) of the Federal Rules of Civil Procedure, you must look for the answer to an interrogatory
question if it can be found in your records or some other available place. It is inappropriate for you
to answer I dont know to an interrogatory if the information needed to answer the question is
available to you.
If the burden of obtaining the answer to an interrogatory from records is the same for both you
and the party serving the interrogatory, you may specify where the information can be obtained.
Under Rule 33(d) of the Federal Rules of Civil Procedure and Local Civil Rule 33.1, you must
identify the records in sufficient detail to permit the serving party to locate and identify the documents
where the answer can be found. You also must give the serving party a reasonable opportunity to
review and copy the documents within fourteen (14) days after service of the interrogatory answers
or at a date agreed to by the parties, unless otherwise ordered by the Judge.
Interrogatories are an inexpensive way for you to discover information relating to your
lawsuit. The only real cost is for postage to mail the request to counsel for the opposing party.
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Court Prepared Interrogatories in Certain Prisoner Pro Se Actions (Local Civil Rule 33.2)
Under Local Civil Rule 33.2, the Court has prepared form discovery requests (combining
interrogatories and document requests) for use in pro se prisoner cases alleging excessive force,
inmate against inmate violence, or disciplinary due process violations where punishment was
confinement in the segregated housing unit (SHU) for more than one hundred (100) days, and where
the events occurred while the prisoner was in custody of the New York City Department of Correction
or the New York State Department of Correctional Services.
The pro se plaintiff in such a case must serve on the defendants, along with the summons and
complaint, the court-prepared standard request entitled Plaintiffs Interrogatories and Request for
Production of Documents (Prisoner Cases, Local Rule 33.2), a copy of which is included at the end
of this section of the manual. The defendants must respond to this standard request within 120 days
of service of the complaint. The defendants must serve their response on the pro se plaintiff and file
a copy with the Pro Se Office.
The Local Civil Rule 33.2 interrogatories and document requests are the only discovery
permitted during that 120 day period. After that period, if you believe that you need additional
follow-up information from the defendant(s), you may serve the defendant with additional
interrogatories or document requests.
Court Prepared Discovery Requests in Pro Se Employment Discrimination Cases
A form Discovery Requests in Pro Se Employment Discrimination Cases, which contains
some of the document requests and interrogatories that a pro se plaintiff in an employment
discrimination case may use to draft discovery requests on the defendant employer, is included at the
end of this section of this manual.
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DISCOVERY: REQUESTS FOR PRODUCTION OF DOCUMENTS (RULE 34)
Under Federal Rule of Civil Procedure 34, you may request production of any document (or
electronically stored information, such as emails) containing information relevant to issues in the
lawsuit. You may use this discovery method to obtain documents (such as records, letters, contracts),
electronically stored information (such as emails), and other tangible items (such as physical things).
Document requests can be served on any person, including individuals or organizations that are not
parties to the lawsuit (but if the request is to a non-party, a subpoena will be required. See
Document Requests To Non-Parties, on pages 89-91.
The document request must be made in writing and it must contain a description of the
documents you want, as well as the date, time, place and manner for their production.
If you have placed your medical (or mental health) condition in issue in the lawsuit (such as
by claiming physical injury, emotional distress or pain and suffering), the defendant may ask you to
complete and return a release or authorization so that the defendant can obtain medical or other
private records and information from a non-party such as your doctor.
Responses to Document Requests
If the opposing party serves a document request on you, you must respond to the document
request within thirty (30) days after its service upon you, unless otherwise agreed by the parties or
ordered by the Judge. In the response, you may agree to produce the requested documents, or object
to all or part of the request. If you object, you also must provide the reasons for your objection. You
must produce documents to the parts of the request to which you did not object.
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When you produce documents, you must produce the documents in the manner that you
usually keep them, or you must organize and label them to correspond with the categories in the
document request.
You must supplement your response if you later discover more documents called for by the
document request.
You should number all the documents you produce, keep a copy of the numbered documents,
and keep a record of what documents you produced when. That way, if the other side claims you did
not produce a document, you would have proof that you did produce it.
Document Requests To Non-Parties (Rules 34 and 45)
You may request documents from a person or organization that is not a party to the case. You
first should request the information informally, such as by a letter; by doing so you may avoid the
expense of obtaining a subpoena. If this informal method is not successful, under Rule 34(c) of the
Federal Rules of Civil Procedure, you may formally request the documents from a non-party through
a subpoena under Rule 45 of the Federal Rules of Civil Procedure.
Rule 45 sets out the procedures for issuing, serving, opposing and responding to subpoenas.
A subpoena is issued by the Clerk of Court, upon application by a party, requiring a non-party to
appear for a court proceeding (such as a deposition or trial) or to produce documents at a specific time
and place. There are two types of subpoenas: (1) a subpoena duces tecum, which commands a person
to produce relevant documents, and (2) a subpoena ad testificandum, which compels a witness to
appear at a judicial proceeding, such as a deposition or trial.
As a pro se party, if you need a subpoena, the subpoena will be issued by the Pro Se Office
and it can be served on a person (for documents or testimony) (i) at any place in the Southern District,
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(ii) at any place within 100 miles of the hearing, deposition, document production or trial (even if
such place is outside the Southern District), or (iii) at any place within New York State where a
subpoena could be served under state law. You may obtain a subpoena from the Pro Se Office. If
the deposition or document production is to occur outside the Southern District of New York and
more than 100 miles from the place of the deposition or document production, you will need to obtain
the subpoena from the court for the geographic area where the deposition or document production will
occur.
A copy of the subpoena must be personally served (hand delivered), by a person who is not
a party to the lawsuit and is at least 18 years old, on the individual that is being asked to produce the
requested information. The $40 subpoena fee and travel expenses must be served on the non-party
at the same time. See 28 U.S.C. 1821. (The Marshals Service will not serve subpoenas.)
The Southern District has no funds to pay the subpoena fee for a pro se party (whether
or not IFP status was granted) and cannot waive the subpoena fee. If you cannot afford to pay
this subpoena fee, you cannot subpoena a non-party.
A copy of the subpoena also must be served on all the parties in the lawsuit. You must
provide other parties with copies of all documents that you obtain in response to a subpoena to a non-
party.
You must take reasonable steps to avoid imposing an undue burden or expense on the non-
party receiving the subpoena for production of documents.
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Response to a Subpoena
Under Rule 45(c)(2)(A), a non-party that receives a subpoena duces tecum is not required to
appear in person at the time and place for the document production, unless that person has been
subpoenaed to appear for a deposition, hearing or trial at the same time and place. The non-party
simply can send you the requested documents.
A non-party that has been served with a subpoena duces tecum for production of documents
may ask the Judge to quash the subpoena. A motion to quash a subpoena is a request to vacate or
void the subpoena, so that the non-party no longer has to obey it. If the Judge grants the motion to
quash, the non-party no longer is required to produce the requested documents. If the subpoenaed
person files a motion to quash your subpoena, you may oppose the motion. See Discovery Motions
on pages 117.
In addition, a non-party that has been served with a subpoena for production of documents
generally has fourteen (14) days to serve any written objections to the subpoena under Rule
45(c)(2)(B). Once an objection has been made to a request, if you still want the documents you must
make a motion or application to the Judge (through the Pro Se Office) to order production of the
requested documents from the non-party.
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DISCOVERY: PHYSICAL AND MENTAL EXAMINATIONS (RULE 35)
If your physical or mental condition is at issue in your lawsuit, the defendant may ask you to
submit to a physical or mental examination under Rule 35 of the Federal Rules of Civil Procedure.
The examination must be done by a suitable licensed or certified examiner, such as a doctor or
psychiatrist. Generally, the party that requested the examination must pay for it.
For example, if you allege that you sustained serious injury in a car accident, and the
defendant driver of the car denies that you were injured or injured as severely as you claim, the
defendant might seek to have you submit to a doctors examination to determine the extent of your
physical injury. The defendant would make arrangements with a doctor and would pay all costs
incurred in getting the examination. As another example, if you claim that you were discriminated
against by your employer and as a result you suffered severe emotional distress, the defendant
employer might seek a mental examination of you by a psychiatrist.
Unlike other discovery methods, a mental or physical examination may be obtained only by
agreement of the parties or by the party seeking the examination filing a motion for the Judge to
decide. Any motion must (1) explain the need for the examination, (2) specify the time, place,
manner, conditions, and scope of the proposed examination, and (3) identify the person(s) who will
conduct the examination. The motion must be served on all parties. If a motion is made and granted
by the Judge, the person to be examined must be notified in writing of the time and place of the
examination, the name of the person performing it, and the procedure to be performed.
Once the Rule 35 examination is completed, you may request a copy of the examination
report. Such a request, however, obligates you to make available any similar report of any
examination that you may have about the same condition, unless you show that the information is
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unavailable. In addition, requesting the report waives any otherwise applicable doctor-patient
privilege regarding the physical or mental condition at issue.
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DISCOVERY: REQUESTS FOR ADMISSION (RULE 36)
A request for admission is a discovery method, under Rule 36 of the Federal Rules of Civil
Procedure, by which a party is asked to stipulate (that is, agree) that certain facts are true, or certain
documents are authentic. You also may use a request for admission to seek agreement on the
application of law to a fact. Requests for admission are intended to relieve parties of the time and
costs associated with proving facts that will not be disputed at trial.
Requests for admission may be served only on other parties to the litigation. If a party admits
something under this discovery method, that fact will be treated as proved.
An admission is only for the purposes of that lawsuit, and is not an admission for any other
lawsuit or any other purpose. An admission in a lawsuit cannot be used against that party in any other
proceeding. Any matter that is admitted is treated as if it has been proven for the purpose of the rest
of the lawsuit, unless the Judge allows the answering party to withdraw or change the admission.
Unlike other discovery devices where generally you are trying to learn information, a Request
for Admission is best used to obtain agreement on facts you already have learned from the other side.
For example, a request to admit that the defendant police officer beat up the plaintiff or used
excessive force on the plaintiff is not likely to be admitted by the defendant. In contrast, a request
to admit that the only three police officers present at the incident were Officers Baynes, Bradstreet
and Lestrade is likely to be admitted. Also, a request to admit that a document is authentic generally
will eliminate a challenge to its admission into evidence.
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Response to a Request for Admission
If the other party serves you with a request for admission, you must admit or deny the request,
object to the request, or state in detail the reasons why you cannot admit or deny the request. If you
cannot admit or deny a particular request in total, you must admit the part that is true and either deny
or explain why you cannot admit the rest. You only may state that you lack knowledge or sufficient
information to permit admission or denial after making a reasonable inquiry.
If you fail to answer a request for admission, that constitutes an admission. If you do not deny
or object to a request for admission within thirty (30) days after its service, the request is deemed
admitted. Thus, it is crucial for you to affirmatively deny all requests not believed to be true. At the
same time, you should not hesitate to admit facts that are true.
Under Rule 37(c)(2) of the Federal Rules of Civil Procedure, if a responding party denies or
otherwise fails to admit the genuineness of a document or the truth of a fact in a request for admission
and the requesting party later proves that the fact is true or the document authentic, the requesting
party may file a motion requesting the Judge to order the other party to pay reasonable expenses
incurred in proving the matter, including attorneys fees. (A pro se party is not entitled to attorneys
fees.) The Judge must grant the motion unless the Judge finds that (1) the request for admission was
objectionable under Rule 36(a), (2) the requested admission was not important, (3) the answering
party had reasonable ground to fail to admit the matter, or (4) there was other good reason for the
failure to admit.
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DISCOVERY: DEPOSITIONS (RULES 27-32)
A deposition is a procedure in which the testimony of a party or of a non-party witness is taken
under oath about their knowledge of certain facts in a lawsuit. See Fed. R. Civ. P. 27-32. It is taken
before trial, a question and answer format is used, and it generally is recorded by a stenographer (a
court reporter) but it also can be recorded by electronic means (videotape or audiotape).
Prior to noticing or taking a deposition, you should review Rules 28 and 30(b) of the Federal
Rules of Civil Procedure, which explain the recording of a deposition, the role of an officer in
recording a deposition, and other relevant information.
The process of questioning a party or witness at a deposition is called deposing a person, or
taking a deposition. The person answering the questions is referred to as the deponent. The deponent
answers all questions under oath, which means that he or she swears under penalty of law that all of
the answers given are true. The deponent can be any person who may have information about the
lawsuit, including parties, non-parties, eyewitnesses, or expert witnesses.
A deposition taken by a party represented by counsel generally occurs in a conference room
in that lawyers office. A deposition taken by a pro se party can occur in the opposing lawyers
conference room. If necessary, however, arrangements can be made through the Clerks Office to
have the deposition at a room in the courthouse (subject to availability). If you are suing individuals
or organizations that do not live or work in New York, you generally are required to take the
deposition where the person lives or works.
A deposition is taken before a person authorized to administer oaths, such as a court reporter,
notary public, or other authorized officer as specified in Rule 28. It is the duty of the party conducting
the deposition to arrange for the court reporter or other authorized officer (and audiotape or videotape
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operator if the deposition is to be audiotaped or videotaped). At the very start of the deposition, the
court reporter or other notary public will swear in the deponent, that is, have the deponent swear to
tell the truth.
The questions and answers in a deposition must be recorded. The party taking the deposition
may choose the method for recording the deposition and is responsible for paying the cost of the
recording. A deposition may be taken by stenographic means (with a court reporter or court
stenographer who will later provide a written record called a transcript of the deposition), or by non-
stenographic methods (audiotape or videotape), unless otherwise ordered by the Judge. Where the
deposition is recorded by audiotape or videotape, it generally will be necessary for you to have a
written transcript prepared from the audiotape or videotape, before it can be used in connection with
a motion, conference or trial.
A party may conduct a deposition over the telephone by written stipulation of the parties or
by obtaining the Judges permission.
Rule 30(a) allows all of the plaintiffs, or all of the defendants, to take no more than ten (10)
depositions, absent the Judges permission for more or a written agreement between the parties. For
example, if there are two defendants, and the first defendant has taken seven depositions and the
second defendant has taken three depositions, neither defendant may take any more depositions
without the Judges permission or the parties agreement.
Generally, a party does not need the Judges permission to take a deposition. However, under
Rule 30(a) of the Federal Rules of Civil Procedure, a party must seek the Judges permission when:
(1) the deponent is in prison; (2) the partys side of the lawsuit has already taken ten (10) depositions,
and the parties have not stipulated in writing that the party can take more; or (3) the deponent has
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already been deposed in the same case, and the other parties have not stipulated in writing that the
deponent can be deposed again.
You initiate the process of taking a deposition by writing and serving a Notice of Deposition
on all parties to the lawsuit within a reasonable time before the deposition is scheduled. This notice
should contain:
1. The case caption including the docket number (described on page 6).
2. The date, time and place where the deposition will be held. If you intend to
conduct the deposition at the Southern District Courthouse in Manhattan, you should
go to the Clerks Office, Room 120, on the day of the deposition and request a room.
The Clerks Office will provide any available room. If you intend to conduct the
deposition at the Southern District Courthouse in White Plains, you must request a
room in writing, a few days in advance of the deposition date, from the Deputy-Clerk-
in-Charge.
3. The name and address of the deponent. Where information is sought from an
organization, such as a corporation or a government agency, and you do not know who
within the organization has the desired information, Rule 30(b)(6) of the Federal
Rules of Civil Procedure allows you to name the organization as the deponent and
describe the subject or subjects you want to discuss at the deposition. The organization
must then designate the person(s) to testify on its behalf and the subject on which each
person will testify.
4. The method by which the deposition will be recorded, such as stenographic (with
court reporter or stenographer), audiotape or videotape. A pro se party who is taking
a deposition by audiotape at the Courthouse should contact the Southern Districts
Audiovisual Department to make arrangements well in advance.
A copy of the Notice of Deposition must be served (mailed or delivered) to each deponent and all
parties in the case, or if a party is represented by counsel, to counsel. The notice of deposition should
not be filed with the Pro Se Office.
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Under Rule 30(d)(2) of the Federal Rules of Civil Procedure, unless otherwise agreed by the
parties or ordered by the Judge, a deposition is limited to one day of no more than seven hours.
The party requesting the deposition, the deponent, the deponents attorney, and the parties to
the lawsuit and their attorneys may attend a deposition. A person whose presence is shown to be
essential to the presentation of a partys case also may be permitted to attend a deposition. For
example, it may be necessary to arrange for an interpreter to be present where there is a language
issue. The officer of a corporate party also has the right to attend a deposition. The corporate party
may designate one person to represent the organization as a party representative and another person
to be the representative deponent under Rule 30(b)(6). Finally, a court reporter or other person who
will administer the oath and record the testimony will be present at a deposition. The Judge is not
present at the deposition.
Under Rule 30(c), any party to the action may ask questions at a deposition. Generally, the
party who requested the deposition asks questions first and then the other parties attorney(s) may ask
questions. A non-party deponents attorney may also ask question at the deposition.
Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, you may ask questions about
any non-privileged matter that is relevant to the claim or defense of any party. A question is relevant
if it is reasonably likely to lead to the discovery of admissible evidence.
Objections at the Deposition
Under Rule 30(c), the deponent (or the deponents attorney) is entitled to state objections to:
(1) the qualification of the officer taking the deposition; (2) the manner the deposition is being taken;
(3) particular questions asked at the deposition; or (4) the conduct of any party at the deposition. Any
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objection made should be noted on the record of the deposition, but the deposition should continue
until it is concluded.
An objection during a deposition must be stated concisely and made in a non-argumentative
and non-suggestive manner. Fed. R. Civ. P. 30(d)(1). You may refuse to answer a question only to
preserve a privilege, to enforce a limitation previously ordered by the Judge, or to present a motion
to the Judge under Rule 30(d)(4). Otherwise, you should state the objection for the record but you
should answer the question. Later, you can bring the objection to the Judges attention for a ruling.
Rule 30(d)(4) allows a deponent or a party at any time during the deposition to present a
motion to the Judge (usually by telephone if the Judge is available) arguing that the deposition should
be stopped, that certain questions should not be answered, or that some other limitation should be
placed on the manner in which the deposition is being taken. The deponent or the party making the
motion must show that the deposition is being conducted in bad faith or in an unreasonable manner
to annoy, embarrass, or oppress the deponent or party.
Deposition of a Non-Party
If you wish to take the deposition of a non-party to the lawsuit, you must serve the deponent
with a subpoena in accordance with Rule 45 of the Federal Rules of Civil Procedure. As discussed
above, a subpoena is a document issued by counsel for a represented party or by the Pro Se Office
upon application by a pro se party, requiring a person who is not a party to appear for a trial or a
deposition or to produce documents at a specific time and place. See Page 89-91.
The same subpoena form is used for a deposition as for a request for the production of
documents. A pro se party can obtain a subpoena from the Pro Se Office for any deposition that will
take place within the Southern District of New York. If the deposition is to be taken outside the
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Southern District, you must get the subpoena issued by the court where the deposition is to take place.
A subpoena must be personally served (hand delivered), by a person who is not a party to the lawsuit
and is at least eighteen (18) years old, on the deponent, along with the witness fees and travel
expenses as provided in Rule 45(b)(1).
Under 28 U.S.C. 1821, you must pay a non-party deponent $40 per day for deposition
testimony. If you request a deposition of a non-party, you also are responsible for the non-party
deponents reasonable travel expenses.
As discussed above, the Court does not have funds to pay subpoena fees on behalf of a pro
se party, nor can the Court waive the subpoena fee. If you cannot afford to pay the non-party
deponent subpoena fee and travel fee, you cannot subpoena the deponent for a deposition.
Motions to Quash a Subpoena
A non-party deponent served with a subpoena may ask the Judge to quash the subpoena. As
discussed above, a motion to quash a subpoena is a request to vacate or void the subpoena, so that the
person no longer has to obey it. If the Judge grants the motion to quash, the subpoena will not be
responded to.
You must take reasonable steps to avoid imposing an undue burden or expense on any person
you subpoena for a deposition pursuant to Rule 45(c)(1) of the Federal Rules of Civil Procedure. A
non-party deponent may seek to get a subpoena quashed if it imposes an undue burden or expense.
In addition, if a deposition subpoena requires a non-party deponent to travel more than 100 miles
from a home or work address, and the non-party objects, the Judge must either quash or modify the
subpoena under Rule 45(c)(3)(A)(ii).
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Failure to Appear for a Noticed Deposition
Under Rule 30(g), if you notice a deposition and fail to attend the deposition, the Judge may
order you to pay the reasonable expenses of all parties and their attorneys who attended the
deposition. If you request the deposition of a non-party deponent and fail to serve a subpoena and
the non-party deponent fails to show up, the Judge may order you to pay the reasonable expenses of
all parties and their attorneys who attended the deposition.
If the other side notices your deposition and you fail to appear, the Judge can impose a variety
of sanctions on you, including monetary sanctions and dismissal of your case. Therefore, if you are
unable to attend a deposition on the date it is scheduled, you must notify the opposing attorney before
the scheduled deposition date.
Procedures After a Deposition is Taken
Before the deposition is completed, a party or deponent may request that the deponent have
the right to review the transcript or recording of the deposition. The transcript of a stenographic
recorded deposition is usually provided by the court reporter or stenographer. The person who
transcribes the recording of a deposition taken by audiotape or videotape must certify that the
transcript is a true record of the deponents testimony. The original transcript, and any audiotape or
videotape, is held by the party that noticed the deposition and should be carefully protected against
loss or destruction.
Under Rule 30(e) of the Federal Rules of Civil Procedure, once a transcript of a deposition
is available, the deponent has thirty (30) days to review the transcript and to make changes in form
or substance. For your deposition, if you make changes on reviewing the deposition transcript, you
must sign a statement listing the changes and the reasons for making them. The court reporter having
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control of the transcript must attach your list of changes to the official deposition transcript. The
deposition transcript itself is not altered. Once the review period expires, pursuant to Rule 30(f), the
court reporter will certify that the deponent was duly sworn and that the deposition is a true record
of the testimony given by the deponent.
Deposition transcripts are to be kept by the parties and should not be filed with the Court
unless the Judge otherwise directs.
Cost May Make Depositions Impractical for a Pro Se Party
Deposition related expenses are probably the major expense of a lawsuit before trial. Usually
a court reporter will charge an appearance fee and a per page charge for the transcript. The transcript
fee may be $4 per page or more for the original transcript. An hour long deposition may consist of
35 to 45 pages of the transcript. For example, if you took a deposition that lasted four hours with a
court reporter, the cost might be approximately $1,000. If you plan to take a deposition using a court
reporter, you should call several different reporting agencies to find out their prices prior to
scheduling the deposition. Again, you are responsible for the costs for the deposition.
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DISCOVERY DISPUTES AND SANCTIONS (RULE 37)
Sometimes parties have disagreements about disclosure and discovery. All parties must
conduct discovery in good faith and attempt to resolve between themselves all differences that may
arise, before seeking assistance from the Judge. If, however, the parties are unable to resolve
discovery disputes after making efforts to do so, it may be appropriate and necessary to seek the
Judges intervention.
If you are not able to resolve discovery disputes by discussing them with the other side, Local
Civil Rule 37.2 requires that you request a conference with the Judge for the purpose of resolving the
disputed issue. You do this by writing a letter to the Judge, serving it on opposing counsel, and
delivering the letter to the Pro Se Office. Some Judges will conduct the discovery conference in the
courtroom; others will do it on the telephone; others will not hold a conference. See also Discovery
Conferences, on page 77. If the Judge denies your request for a conference or the discovery dispute
is not resolved at the conference, you may file a motion for a protective order, a motion to compel
discovery or a motion for discovery sanctions.
For any of these three types of motions, the motion must include a certification that you have
tried to confer in good faith with all persons involved to resolve the matter without judicial
intervention. The motion also must include an explanation of the dispute, what you would like the
Judge to do, and the reasons why the Judge should grant your motion.
Motion for a Protective Order (Rule 26(c))
A protective order is an order limiting the scope of discovery or directing that discovery
proceed in a certain way. A motion for a protective order usually is filed before the discovery is due.
A motion for a protective order must be filed with the Judge before whom the lawsuit is pending,
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except that if the motion involves a deposition outside the Southern District, the motion for a
protective order must be filed in the federal district court in the district where the deposition is to be
taken.
Motion to Compel or for Sanctions (Rule 37)
There are two motions which may be appropriate when disputes arise over initial disclosures
or the response, or lack of response, to a discovery request: a motion to compel or a motion for
sanctions. A motion to compel is a motion asking the Judge to order a party to make initial
disclosures, answer a discovery request, or provide more information in response to a discovery
request. A motion for sanctions asks the Judge to punish a party for failing to make required initial
disclosures, refusing to answer a discovery request, or refusing to obey an earlier order compelling
the party to answer a discovery request.
Rule 37 of the Federal Rules of Civil Procedure sets forth the requirements for filing a motion
to compel. Under Rule 37(a)(2), a motion to compel other parties to make initial disclosures or to
respond to discovery requests must be filed with the Judge before whom the lawsuit is pending. A
motion to compel a non-party to respond to discovery must be filed in the federal district court in the
district where the discovery is being taken.
If the Judge grants a motion to compel, the Judge must require the person against whom the
motion was filed to pay reasonable expenses involved in making the motion, including attorneys
fees, unless the Judge finds that: (1) the motion was filed without the moving party first making a
good faith effort to obtain the disclosure or discovery without judicial intervention; (2) the opposing
persons failure to comply or objection to a discovery request was substantially justified; or (3) other
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circumstances exist which would make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(B).
A pro se litigant is not entitled to an award of attorneys fees.
Under Rule 37(b) through (g) of the Federal Rules of Civil Procedure, a motion for discovery
sanctions may be brought when a party or person fails to: (1) provide required initial disclosures;
(2) obey a Judges order to respond to a discovery request; (3) admit the genuineness of a document
or the truth of a fact which is later proved genuine or true; (4) appear for a deposition for which
proper notice was received; (5) answer interrogatories; (6) respond to a request for production of
documents; or (7) participate in a Rule 26(f) meet and confer conference.
Discovery Sanctions
A Judge granting a motion for discovery sanctions may issue any order that is appropriate to
address the dispute. Rule 37(b)(2) authorizes the Judge to issue any of the following types of orders:
1. An order resolving certain issues or facts in favor of the party who made the
motion;
2. An order refusing to allow a delinquent party to support or oppose certain claims
or defenses, or prohibiting that party from introducing certain evidence at trial;
3. An order striking certain claims or parts of claims from the case, or staying the
lawsuit until the order is obeyed, or dismissing the lawsuit or a part of the lawsuit, or
issuing a judgment of default against a delinquent party; or
4. An order holding the delinquent party or person in contempt of court for failing to
obey an order, except an order to submit to a physical or mental examination.
In addition, if a party fails to make required initial disclosures under Rule 26(a), that party cannot use
the non-disclosed information at trial, at a hearing, or in any motion, unless the Judge finds that the
failure to disclose was harmless. Fed. R. Civ. P. 37(c)(1).
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Under Rule 37(b)(2)(C), if the Judge grants a motion for discovery sanctions, the Judge must
require the disobedient party (or counsel) to pay reasonable expenses, including attorneys fees,
caused by the disobedience, unless the Judge finds that the disobedience was substantially justified
or that other circumstances exist making an award of expenses unjust. Pro Se litigants, like all other
litigants, are subject to sanctions under Rule 37.
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MOTION PRACTICE
A motion is a formal request asking the Judge to do something. Rule 7(b) of the Federal Rules
of Civil Procedure requires all motions to be made in writing, except for motions made during a
hearing or trial, which may be oral or written. When a motion is filed, the following process usually
occurs. First, one party (the moving party) files a motion (described below) explaining what it
wants the Judge to do and why the Judge should do it. Second, the opposing party files papers
opposing the motion, explaining why the Judge should not grant the motion. Third, the moving party
may file reply papers responding to the arguments made in the opposition papers. After the reply
papers, neither side may file any more documents without permission from the Judge. After all the
motion papers are filed, the Judge may decide the motion based solely on the arguments in the papers,
or the Judge may hold a conference where each side may appear in the Judges courtroom or by
telephone and state his or her arguments to the Judge. This is referred to as oral argument. If the
Judge holds oral argument, the Judge may announce the decision in the courtroom or may further
consider the motion and issue a written decision at a later date. If the Judge does not hold a
conference, a written decision will be issued ruling on the motion.
A motion consists of: a Notice of Motion (required), one or more Affirmations or Affidavits
(required), and a Memorandum of Law or Brief (optional for pro se litigants). The Notice of Motion
is a brief statement to the other parties and the Judge telling them what type of motion you are filing.
It should state the name of the motion to the right of the caption, for example: PLAINTIFFS
MOTION TO COMPEL DISCOVERY. The Notice of Motion should give a brief statement of what
you want the Judge to do.
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An Affirmation or Affidavit is a written statement, signed under penalty of perjury or before
a notary public, by a person with personal knowledge that what is written. If you are the moving
party, an Affidavit or Affirmation is your statement to the Judge explaining why you are seeking relief
and why you are entitled to it. If you are the opposing party, you should explain in your Affidavit or
Affirmation why the Judge should not grant the motion. Affidavits or Affirmations should contain
only facts and not legal arguments, which may be presented in a separate Memorandum of Law. The
first page of the Affidavit or Affirmation must contain the caption of the case, and include, under the
docket number, the name of the document, for example: AFFIDAVIT OF JOHN WATSON IN
SUPPORT OF PLAINTIFFS MOTION TO COMPEL DISCOVERY or AFFIRMATION OF
IRENE ADLER IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT.
The Affidavit or Affirmation should consist of a series of numbered paragraphs, with each paragraph
containing a different fact. At the end of your Affidavit or Affirmation, you must state that you
declare under penalty of perjury that the foregoing is true and correct, date it, and sign it. If you
submit an Affidavit, you must sign it before a Notary Public, who will also sign and stamp your
affidavit. If a Notary Public is not available, you may submit your papers in Affirmation form, by the
statement that you declare under penalty of perjury that the foregoing is true and correct. (False
statements in an Affidavit or Affirmation are punishable for perjury.)
An opposition to a motion consists of an Affidavit or Affirmation in opposition to the motion
(required) and a memorandum of law (optional for pro se litigants). The Affidavit or Affirmation
should be in the form described above. A Reply to a motion also consists of an Affidavit and a
memorandum of law (optional for pro se litigants). A reply affidavit should contain facts responding
to the opposition papers; the moving party should not save facts to include in the reply. Affidavits
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should be titled appropriately, for example REPLY AFFIDAVIT OF JOHN WATSON IN
SUPPORT OF PLAINTIFFS MOTION TO COMPEL DISCOVERY. Forms for a Motion,
Opposition to a Motion, and Reply to a Motion are included in this manual.
A Memorandum of Law is a written statement of the legal arguments supporting your position.
The first page of the Memorandum of Law must contain the caption of the case, and include, under
the docket number, the name of the document, for example: MEMORANDUM OF LAW IN
SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY
JUDGMENT. The Memorandum of Law should contain a brief Introduction to state the purpose
of the document, for instance: To urge the Court to deny the Defendants Motion for Summary
Judgment because there is a genuine issue of material fact in dispute. The Introduction is generally
followed by a brief Statement of Facts which highlight the facts relevant to the motion and your
position. The Statement of Facts is then followed by your Arguments, in which you may refer to laws
or decisions issued in other cases to lend support to your position and to convince the Judge to rule
in your favor. The Memorandum of Law should end with a Conclusion, which summarizes your
arguments and urges the Court to rule in your favor. You must date and sign the Memorandum of
Law, but you need not have the document notarized.
Motion Timing
Different types of motions are appropriate at different stages of your case. Before making any
motion you should check your Judges Individual Practices to determine whether you are required to
request a pre-motion conference or take some other step before making your motion. Before filing
motion papers with the Pro Se Office, all motion papers must be served on all parties in your case and
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must contain an Affirmation of Service stating that you have served the papers on the other parties.
See also page 62.
If you are opposing a motion or filing a reply, you must consult Local Civil Rule 6.1 to
determine how much time you have to serve and file your papers. Local Civil Rule 6.1 sets one
schedule for discovery motions and another for every other motion. For a discovery motion, the
opposition must be served within seven (7) days after service of the moving papers, and any reply
must be served within two (2) days after service of the opposition. For a summary judgment motion,
the opposition must be served within twenty-one (21) days after service of the moving papers, and
any reply must be served within fourteen (14) days after service of the opposition. See Fed. R. Civ.
P. 56(c)(1). For any other type of motion, the opposition must be served within fourteen (14) days
after service of the moving papers, and any reply must be served within seven (7) days after service
of the opposition. Under Rule 6(d) of the Federal Rules of Civil Procedure, an extra three (3) days
may be added to each of the above deadlines if the papers being responded to were served by any
method other than hand delivery. For example, if a defendant moves to dismiss your complaint and
serves the motion on you by mail, you have seventeen (17) days, rather than fourteen (14), to serve
your opposition. Rule 6(a) explains that all time periods should be counted in calendar days; if a
deadline falls on a weekend or holiday, the deadline moves to the next business day.
Extension of Time
If you need more time to meet a deadline to respond to the other partys motion or to file a
reply in your motion, you may enter into an agreement with the opposing party to do so. You should
telephone the opposing partys lawyer, inform the lawyer that you need more time, tell the lawyer how
much time you need, and ask if the lawyer agrees to your proposed new deadline. The lawyer may
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prefer a shorter extension, and you may need to negotiate over the length of the extension. Once you
have agreed on a new deadline, you and the opposing partys lawyer usually will sign a stipulation
(a written agreement) and send it to the Judge for approval.
If the opposing party refuses to agree to an extension of time, you may write a letter to the
Judge through the Pro Se Office, informing the Judge of your opposing partys position and asking
the Judge to grant you an extension. Rule 6(b) of the Federal Rules of Civil Procedure allows the
Judge to give you extra time to make or respond to a motion if you show a good reason why you need
it. Under Rule 6(b), the Judge may grant extra time with or without a motion or notice to the other
parties if you make the request before the original deadline passes. If you wait until after the original
deadline has passed before asking for extra time, you must make a motion and show that excusable
neglect caused you to miss the deadline. You also may try to file your papers after the deadline has
passed without making a motion for permission to do so, but the Judge is not obliged to consider your
late papers.
Urgent Matters
Sometimes a motion raises an urgent issue that needs to be decided very quickly. In these
circumstances, you may stipulate with your adversary or ask the Judge for an expedited motion
schedule. If there is a genuine emergency, you may make a motion seeking preliminary relief without
notice to the opposing party (ex parte), which is brought to the Judges attention by an order to show
cause. Ex parte motions seek extraordinary relief, and therefore are rare and must comply with
special requirements. Unlike other pro se papers, which are liberally interpreted by the Judge with
the understanding that you are not a lawyer, a request for an order to show cause must make a very
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specific showing or else the Judge may deny the request for failing to comply with Rule 65 of the
Federal Rules of Civil Procedure.
Common Types of Motions
There are different types of motions that can be made at any stage of your case. Some
motions, such as motions to dismiss or motions for summary judgment, are dispositive, which
means that the granting of the motion ends certain claims or the entire case. These motions are
usually made by defendants. Other motions, such as motions to compel compliance with discovery
requests, are non-dispositive, which means that the outcome of the motion will not itself end the
case. The following are descriptions of the most common types of motions.
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Motion to Dismiss the Complaint
In a motion to dismiss the complaint, the defendant argues that there are legal defects with the
way the complaint was written, filed, or served. If you are a pro se defendant and you file this
motion, you do not need to file your answer to the complaint until after the Judge decides your
motion.
Rule 12(b) of the Federal Rules of Civil Procedure lists the following defenses that can be
raised in a motion to dismiss the complaint:
(1) Lack of subject matter jurisdiction. When asserting this ground, the defendant argues that
the federal district court does not have the legal authority to hear the type of claim asserted in the
complaint. Although this ground may be asserted at any time, it is better to make a motion asserting
it as soon as the jurisdictional problem becomes apparent. If the motion is granted on this ground,
the case is dismissed and the litigation is over. The Judge also may dismiss a complaint for lack of
subject matter jurisdiction sua sponte, that is, without being asked by the opposing party to do so.
See also Jurisdiction and Venue, on pages 35-42.
(2) Lack of personal jurisdiction over the defendant(s). When asserting this ground, the
defendant argues that he or she has so little connection with the Southern District of New York that
the court has no legal authority to hear the plaintiffs case against that defendant. This ground for
dismissal must be asserted as soon as possible, either in the defendants answer or in a motion to
dismiss.
(3) Improper venue. When asserting this ground, the defendant argues that the Southern
District of New York is the incorrect federal court for this lawsuit. See also Jurisdiction and Venue,
on pages 35-42.
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(4) Improper summons and (5) Improper service of process. When asserting these grounds,
the defendant argues that the plaintiff did not prepare the summons correctly or did not properly serve
the summons on the defendant.
(6) Failure to state a claim upon which relief may be granted. When asserting this ground,
the defendant argues that even if everything stated in the complaint were true, the defendant did not
cause an injury to the plaintiff that the law recognizes. A motion to dismiss for failure to state a claim
is not appropriate if the defendant wants to argue that the facts alleged in the complaint are not true.
Instead, the defendant in a motion to dismiss the complaint for failure to state a claim assumes that
the facts alleged in the complaint are true, but argues that those facts do not constitute a violation of
any law.
(7) Failure to join an indispensable party under Rule 19. When asserting this ground, the
defendant argues that the plaintiff failed to sue someone who must be included in the lawsuit before
the Judge can decide the issues raised in the complaint.
Under Rule 12(a)(4), if the Judge denies a motion to dismiss in whole or in part, the defendant
must file an answer within fourteen (14) days after the Judges decision of the motion. The Judge
may grant the motion with leave to amend, which gives the plaintiff an opportunity to correct the
problems with the complaint by filing an amended complaint. The Judge may also grant a motion
to dismiss in part, which means that the plaintiff may continue the case only with the claims that were
not dismissed. If the Judge grants the motion to dismiss in whole or in part with prejudice, it means
that the legal problems in plaintiffs complaint cannot be corrected, and the plaintiff may not raise
these claims in any new complaint. If the Judge grants the motion in whole or in part without
prejudice, the plaintiff may attempt to cure the deficiencies and raise the claims in an amended
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complaint or a new lawsuit. If the defendant files a motion to dismiss, the plaintiff must oppose the
motion or risk having the case dismissed. If the motion to dismiss identifies deficiencies in the
allegations of the complaint, the plaintiff may, in addition to opposing the motion, file an amended
complaint curing any of the deficiencies.
A motion to dismiss the complaint under Rule 12 generally should not refer to any evidence,
documents or facts that were not contained in the complaint. If a defendant submits evidence outside
the complaint in its motion to dismiss, the motion may be converted to a motion for summary
judgment. In such a situation, Local Civil Rule 12.1 requires the defendant to provide the pro se
plaintiff with the notice set forth in Local Civil Rule 12.1 that the motion may be considered a
summary judgment motion. A copy of the Local Civil Rule 12.1 Notice form is included in this
section of the manual. Summary judgment motions are explained more fully below.
In addition to a motion brought by a defendant, the Court may, on its own (referred to as sua
sponte), dismiss your pro se case on various grounds. Under Rule 12(h)(3), the Court must dismiss
your case if, at any time in the proceeding, it determines that the court lacks subject matter
jurisdiction. See also Jurisdiction and Venue, on pages 35-42. The court must also dismiss your
case if it determines that: (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief. 28 U.S.C. 1915(e)(2). In
addition, the Court may dismiss your case if the case is duplicative of a case that you previously filed,
or if you fail to comply with a court order. This is not an exhaustive list of grounds for sua sponte
dismissal.
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Discovery Motion
If the parties disagree over discovery, you first must try to resolve the dispute without
contacting the Judge. You may negotiate with the opposing party in person, by telephone or by letter.
Opposing counsel, or you, may confirm your oral discussions by writing a letter afterwards
summarizing the issues on which you agree or disagree.
If you cannot come to an agreement or compromise on discovery with the opposing party, you
(or the opposing party) may wish to file a motion asking the Judge for assistance. Before you file a
motion, Local Civil Rule 37.2 requires that you first write a letter to request a conference with the
Judge to discuss the discovery dispute. Your letter should describe briefly the dispute and your
position. See also Discovery Conferences, on page 77. If your request for a conference is denied,
or your dispute is not resolved during the conference, you may file your discovery motion. You also
should check your Judges Individual Practices to see whether that Judge has additional requirements
for motions concerning discovery disputes.
In your discovery motion, you must (a) demonstrate to the Judge that you attempted to
negotiate with your opposing party, but were unable to resolve your dispute on your own; (b) list the
specific disagreements over discovery that you are having with your opposing party; (c) state clearly
and concisely why you believe the Judge should resolve the discovery dispute in your favor.
Summary Judgment Motion
A motion for summary judgment decides a case without a trial because material (that is,
important) facts are not in dispute. A summary judgment motion may be filed by either the plaintiff
or the defendant. When a plaintiff files a motion for summary judgment, the plaintiff tries to show
that the undisputed material facts prove that the defendant violated the plaintiffs rights. When a
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defendant files a motion for summary judgment, the defendant tries to show the opposite: that the
undisputed material facts prove that the defendant did not violate the plaintiffs rights. In practice,
however, in pro se cases a summary judgment motion usually is filed only by the defendant. When
the defendant files a motion for summary judgment, the defendant essentially is telling the Judge that
no trial is necessary because, based on all of the evidence, there is no dispute over the material facts
of the case and in applying the law to those undisputed facts, no reasonable jury could find in favor
of the plaintiff. The moving party may assert that the parties agree about the facts or that the other
side does not have any evidence to support its version of the facts. See also Local Rule 56.1.
The Judge will grant summary judgment only if the evidence is so one-sided that a jury could
not reasonably find in favor of the opposing party. In deciding a motion for summary judgment, the
Judge must consider all of the admissible evidence from both parties. Because summary judgment
means that there is no chance to hear live witnesses and decide who is credible, the Judge must
interpret the evidence in the light most favorable to the party who is opposing the motion (usually the
plaintiff).
If the Judge grants a motion for summary judgment, the lawsuit is over. If the Judge denies
a motion for summary judgment, the case will go to trial (unless the parties settle the case). By
denying summary judgment, the Judge does not decide whose version of the facts is correct or true.
Rather, denying summary judgment means that there is a real dispute about the important facts that
will have to be decided in a trial.
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Not every motion for summary judgment is intended to end the entire case. A motion for
summary judgment may be brought to end the whole lawsuit, or it may be brought to decide some but
not all of the claims.
Rule 56 of the Federal Rules of Civil Procedure explains the requirements for filing a motion
for summary judgment. Some Judges require a pre-motion conference before a party may file a
summary judgment motion. You should consult your Judges Individual Practices to determine if
your Judge has any special requirements applicable to summary judgment motions.
Local Civil Rule 56.1(a) requires that the moving party include in the summary judgment
motion a list of all the undisputed material facts. This is called a Local Rule 56.1 Statement. If the
moving party fails to submit this statement, the Judge may deny the motion. Local Rule 56.1(b)
requires the opposing party to include a correspondingly numbered paragraph responding to each
numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs
containing a separate, short and concise statement of additional material facts as to which it is
contended that there exists a genuine issue to be tried. Each material fact must be followed by a
citation to admissible evidence, as set forth in Fed. R. Civ. P. 56(e). In other words, if you are the pro
se plaintiff responding to the defendants Local Rule 56.1 Statement, you must respond paragraph by
paragraph to the defendants Rule 56.1 Statement, either admitting or disputing the statement, and
if you contend a fact is in dispute, include a citation or reference to the evidence to support your
contention (for example, a citation to a paragraph of an affidavit, or to the page of a deposition
transcript, or to a particular document).
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Local Civil Rule 56.2 requires any party represented by counsel that files a summary judgment
motion against a pro se litigant to serve the pro se litigant with a copy of the Notice required by Local
Civil Rule 56.2, along with the summary judgment motion. The Notice explains to the pro se litigant
what a summary judgment motion is and the importance of opposing it with affidavits or other
admissible evidence. The Local Civil Rule 56.2 Notice is included in this manual.
Typically, motions for summary judgment are made after the close of discovery. If the
opposing party files a motion for summary judgment before the close of discovery and you need more
discovery in order to show why summary judgment should not be granted, you may respond by
including in your opposition a statement that you cannot respond to the motion because you need
discovery. See Fed. R. Civ. P. 56(f). You must show what specific facts you need, why those facts
will defeat summary judgment, and why you need discovery to get those facts. You must be specific,
and describe exactly what sort of information you need from discovery, and why. If the summary
judgment motion is filed after the close of discovery, you generally may not request further discovery.
Motions Made During or After Trial
Motion for Judgment as a Matter of Law
Under Rule 50(a) of the Federal Rules of Civil Procedure, a party may make a motion for a
judgment as a matter of law during the trial, but after at least one side has presented its direct case,
asking the Judge to decide the case without submitting it to the jury. The purpose of such a motion
is to resolve one or more claims or defenses or to end the case entirely where there is no legally
sufficient evidentiary basis for a reasonable jury to find against the moving party. In other words,
where a party has not presented sufficient evidence to support its claims or defenses as a matter of
law, the other party may move to have the Judge decide those claims or defenses in its favor without
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submitting them to the jury. Defendants may make this motion after the plaintiff has presented all
of its evidence, or either party may make this motion after both parties have presented all of their
evidence.
If the Judge denies a motion under the Rule 50(a), a party may renew the motion for judgment
as a matter of law under Rule 50(b) after the verdict, within twenty-eight (28) days after entry of the
judgment. The moving party must clearly show that there was insufficient evidence to support the
verdict.
Motions Challenging an Order or Final Judgment
There are a few types of motions to challenge an order or final judgment, all of which are
described as motions for reconsideration or motions for reargument. Each of these motions is
appropriate in particular circumstances and has its own requirements. They are discussed in the
section of this manual on Appeals on pages 136-42.
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SETTLEMENT AND MEDIATION
Your case does not have to go to trial to be resolved. In fact, most cases are resolved before
trial either through motions or through Alternative Dispute Resolution (ADR). Two common forms
of ADR are settlement negotiation and mediation.
Settlement Negotiations
Settlement is a compromise between parties in a civil case. A settlement may occur at any
time and ends the lawsuit. The parties may discuss settling the case without the Judge being present
or the parties may ask for the Judge to supervise the settlement discussions. The parties may start
settlement discussions on their own, or the Judge may direct the parties to start settlement discussions.
Frequently, the District Judge will ask the Magistrate Judge to supervise settlement discussions. The
Judge will not act as your attorney and will not force either party to settle. It is up to each party to
decide whether and on what terms it is willing to settle the case.
You should consider any serious offer of settlement. There is no guarantee that even if your
case goes to trial the jury will find in your favor. Moreover, even if the jury does find in your favor,
there is no guarantee that you will be awarded the amount of damages you asked for in your
complaint. A pro se party may be at a disadvantage in litigation against a party represented by an
attorney because of the attorneys legal background, experience and resources.
In preparation for negotiating with the opposing party, if you are the plaintiff, you should
consider what the maximum is that you realistically could obtain if you went to trial and won before
the jury. There is no incentive for the defendant to pay you that amount in settlement; cases almost
never settle unless you are willing to compromise, that is, to accept less than you might if you won
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your case. One approach to settlement is for you to consider how likely it is that you will win (as a
percentage) and if so, how much the jury might award you. For example, if you believed you had a
25% chance of winning at trial and if you won you believe the jury likely would award you $10,000,
a settlement around $2,500 might make sense. Your likelihood of success depends upon the evidence
you have or can develop during discovery. The issue is not so much what really happened but what
you are able to prove through admissible evidence. Keep in mind that both parties will be making
their own best guess as to your likelihood of winning the case and the amount that the jury might
award you. If you do not settle the case, you risk that your case may be dismissed on a motion (such
as a summary judgment motion) or that the jury may rule for the defendant, in which case you would
get nothing. A settlement eliminates the cost, delay and effort of the litigation, and the risk that you
will lose the case and get nothing.
If you reach a settlement with the other party, the settlement should be reduced to a written
agreement (usually prepared by the lawyer for the party represented by counsel). Oral agreements,
however, are also valid and enforceable, particularly those reached in open court. You must review
the written settlement agreement carefully to be sure that you understand it and that it correctly states
what you agreed to. Both parties will sign the settlement agreement. The settlement generally
includes a separate release waiving your right to bring any other lawsuit or proceeding in federal or
state court related to the claims presented in your lawsuit. Sample Settlement Agreement and Release
forms are included in this section of the manual.
The parties may submit the Settlement Agreement to the Judge to approve it and So Order
it. The parties also will submit a Stipulation and Order of Dismissal to the Judge, to dismiss the
lawsuit as settled.
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Settlement of Prisoner Lawsuits
If you are a prisoner, you should be aware of New Yorks Son of Sam Law. N.Y. Executive
Law 632-a. The Son of Sam Law requires that whenever a prisoner (including a person who is
incarcerated or on any form of supervised release), who was convicted of certain crimes, receives
money in excess of $10,000 (including from settlement or judgment in a lawsuit), notification must
be given to the Crime Victims Board and by the Board to the victims of the crime. The victims of
the crime then have a period of time in which they can file a lawsuit for damages against the prisoner,
during which time the money may be held by the Crime Victims Board. If you settle for an amount
below $10,000, the Son of Sam Law does not apply.
Mediation in Pro Se Employment Cases
Mediation involves a meeting between the plaintiff, defendant, each partys counsel, and a
neutral third party (the mediator), in an attempt to reach a voluntary, negotiated resolution.
Mediation provides an opportunity to discuss the issues raised in the complaint, to determine
the parties main concerns, and to speak calmly and openly about the important issues. The purpose
of mediation is to resolve the dispute by reaching a mutually satisfactory agreement, by carefully
exploring not only the relevant evidence and law, but also the parties underlying interests, needs and
priorities.
The mediator is an unpaid, neutral person, who directs settlement discussions. He or she is
an experienced lawyer who has been trained and certified by the Southern District. Alternatively, a
Magistrate Judge may be the mediator. The mediator serves to improve communication between the
parties, to assist each party in understanding their opponents position, and to facilitate discussion of
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the key issues. The mediator conducts the meetings, defines the issues and may suggest the
possibilities of resolution. The mediator does not make decisions, issue findings or determine who
is right and wrong, and may not be a witness, consultant, or attorney in any future proceedings
relating to the dispute.
The Southern District has a program to mediate pro se employment discrimination cases
brought under Title VII of the Civil Rights Act of 1964, as codified, 42 U.S.C. 2000e to 2000e-17
(discrimination based on race, color, gender, religion and national origin), the Age Discrimination in
Employment Act of 1967, as codified, 29 U.S.C. 621-34 (discrimination based on age), or Title
I of the Americans with Disabilities Act of 1990, as codified, 42 U.S.C. 1242-17 (discrimination
based on disability or perceived disability). Upon the signed consent of the parties, the Judge can
appoint a pro bono lawyer to represent the pro se litigant solely for the mediation.
There are advantages to this mediation program for the pro se plaintiff:
SAVES TIME Mediation reduces the delays caused by the increasing number of cases
being filed with the courts. Mediation also may allow the parties to avoid lengthy discovery
proceedings and arrive at a quick resolution.
AN OPPORTUNITY TO MEET WITH AN ATTORNEY An attorney is assigned to you
to review your case. The attorney can discuss with you whether or not to settle and, if so, for how
much money.
FAIR The mediator does not have any interest in the case, and therefore the mediator can
conduct sessions in an unbiased manner, giving both parties time to explain their situation and
perspective.
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CONFIDENTIAL Any information disclosed during mediation cannot be used against
either party in the litigation and will not be revealed to anyone, including the Judge assigned to the
case.
LESS FORMAL SETTING The high success rates of mediation can be attributed to a
more flexible and comfortable setting for participants to explain their point of view.
COST EFFECTIVE Mediation is FREE.
The Pro Se Employment Case Mediation Process
At any time after the defendant has been served with the summons and complaint, the parties
may express their interest in mediation to the Judge, or the Judge may ask the parties if they are
interested in mediation. If the parties are interested in pursuing mediation and the Judge determines
that the employment discrimination case is appropriate for mediation, the parties must sign the
Referral Form for Pro Se Employment Discrimination Mediation. A copy of that form is included
in this section of the manual.
Once the parties have consented to the mediation, the Pro Se Office will attempt to find a
volunteer attorney for you (the pro se plaintiff). The Judge will issue an order appointing that specific
attorney to represent you for purposes of the mediation only, and the parties will be sent a copy of the
order, which includes the attorneys address and phone number. The pro bono attorney will contact
you to schedule a meeting. If you have not been contacted by the attorney listed in the Judges order
within one week of receiving the order, you should contact the attorney directly to discuss your case.
The Southern Districts mediation administrator will schedule the mediation within 4 - 6 weeks. You
and the attorney will arrange to meet before the mediation session to discuss the case. Mediation
sessions generally will take place at the courthouse.
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The primary goal of mediation is reach a resolution of the dispute. Mediation concludes when
the parties reach an agreeable resolution for some or all of the issues. If a resolution is reached, the
parties will sign a settlement agreement, which is a binding contract, and the litigation will be
dismissed. If the mediator decides that resolution is impossible, the case will return to the litigation
process. The attorney appointed to represent a pro se litigant in mediation is not responsible
for the case once mediation has ended.
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TRIAL AN OVERVIEW
If your lawsuit has not been settled or dismissed on a motion, it will proceed to trial. At trial,
the plaintiff attempts to prove that he or she is entitled to the relief sought, and the defendant attempts
to prove the opposite. The following is an overview of the stages of a trial and the Judges role during
the trial.
For a more detailed description of the stages of a trial and how to prepare for a trial, please
refer to Trial Ready: A Manual for Pro Se Litigants Appearing in the United States District Court for
the Southern District of New York (Trial Ready Manual) that is distributed by the Pro Se Office.
If you have been granted in forma pauperis status, you may request, in writing, one free copy of the
Trial Ready Manual from the Pro Se Office when a trial date has been set by the Judge. The Trial
Ready Manual also can be purchased for $15. If you are interested in purchasing the Trial Ready
Manual, contact the Pro Se Office for additional information.
The Role of the Judge During Trial
The Judge presides over (supervises) the trial from the bench (the elevated desk in the
courtroom where the Judge sits). The functions of the Judge during trial are:
maintaining order while the trial proceeds;
determining whether evidence is admissible;
if the trial is before a jury (jury trial), instructing the jury regarding the law before
the jury deliberates (meets to consider and decide, based on the Judges instructions and the evidence
presented, which party should win); and
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if the trial is a bench trial (no jury), determining which party should win based on
the law and the evidence presented.
The Stages of a Trial
Jury Selection
If the case is to be tried by a jury, the first stage of the trial is jury selection, called voir dire,
where the Judge asks potential jurors questions to see whether or not a particular potential juror will
be able to decide the case impartially. (This is different from cases in the New York State courts, in
which the attorneys ask potential jurors questions.)
Either party may challenge whether a potential juror can serve on the jury. There are two
types of challenges to a potential jurors suitability to serve on the jury:
Peremptory challenge: challenge to the suitability of a certain number of jurors given
without a reason. Each side (plaintiff or defendant) generally is given three peremptory challenges
under 28 U.S.C. 1870.
Challenge for cause: challenge to the suitability of a certain juror that a party believes will
be unable to objectively consider the facts of the case due to a pre-existing prejudice or bias. There
is no limit to the number of challenges for cause a party can make. The party making such a challenge
must articulate a reason to the Judge for having a juror excused for cause, and it is the Judge who
must decide whether the challenged juror should serve on the jury.
Each Judge has procedures for selection of a jury. For instance, some Judges conduct voir dire
in the courtroom, while other Judges conduct voir dire in the robing room (a room next to the
courtroom), with only the parties, counsel and the Judge present.
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In most civil cases, eight (8) jurors are chosen. Once the courtroom deputy swears in these
jurors, the jury is considered impaneled. All eight (8) jurors will participate in deliberations. There
are no alternate jurors. While one or more jurors may be excused during trial (for illness or other
reasons), no less than six (6) jurors will decide a case unless the parties agree to have a lower number
of jurors.
Judges Statements to the Jury
Once the jurors are sworn in, the Judge will inform them of what they will be required to do
to decide the case. The Judge will inform the jurors that:
The jury determines the facts of the case, not the law of the case. A jury determines the
facts of the case by measuring the credibility of the evidence presented during the case. The jury must
follow the law as instructed by the Judge.
The jurors cannot discuss the case with anyone, including each other, until the presentation
of evidence is concluded and the Judge instructs the jurors on the law and instructs them to deliberate.
The jurors must keep an open mind and not form an opinion until each party has concluded
presenting its case. Jurors cannot research or investigate any of the allegations or testimony on their
own but must rely on the evidence presented at trial and the Judges instructions.
The Judge will instruct the jury as to what is and what is not evidence. The Judge also will
instruct the jury as to which party has the burden of proof.
Opening Statements
After the jurors have been sworn in and the Judge has spoken to the jurors about their role
during the trial, the trial will begin with the presentation of opening statements by each party. The
plaintiff will make an opening statement first, the defendant second. An opening statement is not
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considered evidence to be considered by the jury. The purpose of an opening statement is to tell, in
a narrative (story) form, the issues in the case and the facts a party intends to prove in support of the
claims. During your opening statement, however, you are not allowed to argue your case or discuss
the law. To be considered by the jury, any facts mentioned in the opening statement must be
addressed (that is, proved) at trial through testimony or documentary evidence. If you fail to prove
a fact mentioned in your opening statement, the opposing partys lawyer may highlight this in the
closing argument to show the weakness of your case.
Presentation of Evidence
The actual presentation of evidence occurs after the opening statements have been completed.
Evidence is the proof that a Judge allows a party to present to the jury. Examples of evidence are:
the testimony of a witness on the witness stand while under oath, and documents or other exhibits
presented to the jury during trial. Parties commonly use the material and information received during
discovery as evidence.
Certain rules have been established which must be followed during a trial in order to prohibit
improper information or documents from being admitted as evidence. These rules are called the
Federal Rules of Evidence and must be referred to in order to determine whether certain evidence is
admissible. They are available in most law libraries and also can be viewed via links from the pro
se page of the Courts website (free on-line resources).
Direct and Cross Examination of Witnesses
Direct Examination When you question your own witness, it is called direct examination.
Only non-leading questions are allowed during direct examination. A non-leading question does not
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imply the answer in the question. Examples of non-leading questions are questions that begin with
the words: Who, What, When, Where, How, or Why.
Cross Examination Once a party has presented and questioned its witness, the opposing
party is entitled to question that witness about the matters of the testimony given during direct
examination. This form of questioning is called cross examination. Both leading questions
(questions that imply the answer) and non-leading questions are acceptable during cross examination.
Redirect Examination (Redirect) If, after cross examination is completed, a party has
additional questions to ask its witness about issues that were raised during that witnesss cross
examination, that party may ask non-leading (Who, What, When, Where, How, or Why) questions
in what is called redirect examination.
Recross Examination (Recross) Recross examination is cross examination by the opposing
party with questions based on the witnesss answers during redirect examination.
Objections
An objection is a way of attempting to prevent inadmissable evidence from being presented
to the jury. If you believe that the opposing party is attempting to introduce improper evidence or is
asking improper questions of a witness, you must stand and object, stating to the Judge the reasons
for your objection, that is, why such evidence and/or question is improper. You can make objections
when the opposing party is: (1) questioning a witness, (2) seeking to admit a document into evidence,
or (3) presenting their opening or closing statements. Whether evidence is admissible is a decision
made solely by the Judge. You must state the reason for your objection to ensure that the issue can
be raised on appeal.
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In order to determine the admissibility of certain disputed evidence, the Judge may have a
conference with the pro se party and the opposing partys attorney to discuss why the particular
evidence may or may not be admissible. This conference is called a sidebar or a bench conference.
A record is made of the proceeding by the court reporter. It is conducted out of the hearing of the
jury.
Closing Statements (also known as Closing Arguments)
After all the evidence is presented, both sides have the right to make closing statements. The
closing statements are a partys final chance to address the jurors before the Judge instructs the jurors
on the law and they begin deliberations. In the closing statements, the pro se party and the opposing
attorney each summarize the evidence presented, explain to the jury how the evidence is relevant to
the issues in the trial, and tell the jury why, based on all the evidence they have heard and seen at trial,
they should return a decision favorable to its respective side. The closing statements also give the
parties the opportunity to provide the jurors with a clear and coherent narrative or story of what
happened using the testimony and other evidence that was admitted during trial. During closing
statements, you are not permitted to include personal opinions about the facts or the evidence and
must be careful not to do so.
Jury Instructions (also known as Jury Charge)
After the closing statements, the Judge will instruct the jury on the relevant law, how this law
must be applied to the facts of the case, and the specific questions the jury will be required to decide.
As a general rule, the Judges instructions to a jury will: inform the members of the jury of their role
in the case; explain which party has the burden of proof; explain the role of the evidence presented,
the weight to be given to various types of evidence, and the permissible and impermissible inferences
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to be drawn from the evidence; explain any limitations on the use of certain evidence; and set out the
elements of each claim and any defenses.
Proposed Jury Instructions
Prior to trial, each party may prepare proposed jury instructions and submit them to the Judge
in writing for consideration, as specified by the Judge or by the Judges Individual Practices. There
are several reference books available in a law library that provide model jury instructions on areas of
law frequently dealt with by trial courts. Keep in mind, however, that the Judge is not obligated to
use either partys proposed jury instructions when instructing the jury.
Objections to Jury Instructions
Once the Judge has prepared the jury instructions, the Judge usually will give each party a
copy to review. Each party will be asked if it has any objections. When making an objection, you
should identify the instruction that you are referring to, explain the basis for your objection, and offer
an alternative instruction.
Jury Deliberation
Jury deliberation begins when the Judge has completed instructing the jury and the jury is sent
to a room, guarded by a Court Security Officer (CSO), to discuss the case. Jury deliberation is the
process whereby the jury evaluates the evidence and draws conclusions, with the goal of reaching a
verdict. No one, including the Judge or the parties, is permitted to witness the jury deliberations.
During jury deliberations, the jurors are not permitted to speak to anyone, other than each other, about
the case. In addition to following the Judges jury instructions while deliberating, the jury must
answer a set of yes or no questions which will be given to the jury in what is called a verdict form.
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Verdict
Once the jury has reached a decision, one of the jurors, known as the foreperson, will inform
the Judge that the jury has reached a decision. The jurys decision is called the verdict. Unless the
parties otherwise agree, the jurys verdict must be unanimous and no verdict can come from a jury
of fewer than six jurors. The jurors will return to the courtroom and the Judge will ask the foreperson
if the jury has reached a verdict. If the foreperson says yes, the Judge will ask to see the verdict form
and then ask the jury foreperson to confirm the jurys answer to each of the questions on the verdict
form. You also may ask the Judge to poll the jury, that is, to have each juror state that this is his or
her verdict.
If you believe that the verdict was incorrect, you may appeal the decision. The procedure for
doing so is outlined in the section of this manual entitled Appeals, on pages 136-42.
Judgment
After the Judge (bench trial) or the jury (jury trial) has issued a verdict, a document entitled
Civil Judgment or Judgment is prepared by the Judgment Clerk. The Judgment is prepared
whether you won or lost your case. The Judgment closes your case in the Southern District and starts
your time to appeal.
If you win at trial, you may be able to recover from your opponent, in addition to any monetary
damages you may have won at trial, some or all of the costs you spent to bring or defend your lawsuit.
If you lose at trial, the defendant may be able to get a judgment for costs against you. Local Civil
Rule 54.1 provides more details regarding this request. A pro se party cannot be awarded attorneys
fees.
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APPEALS
A final decision by the Judge may be reviewed by a higher federal court the appeals court
if the losing party files a Notice of Appeal. Appeals from cases in the Southern District of New
York are heard by the United States Court of Appeals for the Second Circuit (the Second Circuit).
The rules and procedures for appeals are set forth generally in the Federal Rules of Appellate
Procedure (Fed. R. App. P.) and the Local Rules of the Second Circuit.
Grounds for an appeal usually consist of allegations that the Judge made an error either in
interpreting the law or in a procedural ruling during the course of the case. Any error must have been
sufficiently significant so that the Judge or jury reached an incorrect decision as a result of the error.
In general, only final orders or judgments from the district court may be appealed. 28 U.S.C.
1291. This kind of appeal is called an appeal as of right. In most cases, a final order or judgment
is entered when all issues in the case have been resolved in favor of either the plaintiff or the
defendant. In order to appeal, a final order or judgment should be entered on the docket of your case.
A final order or judgment is the document that announces the final decision with respect to your case
(that is, whether you won or lost) and closes the case with the district court.
You have thirty (30) days (or sixty (60) days if the case involves a party who is the United
States, a federal agency or federal employee) from the date that the final order or judgment was
entered on the docket to file a Notice of Appeal in the Southern Districts Pro Se Office. A Notice
of Appeal is a one-page document containing your name, a description of the final order or judgment
(or part thereof) being appealed, and the name of the court to which the appeal is taken (the Second
Circuit). A Notice of Appeal form is included in this manual.
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Once you file a Notice of Appeal, the District Court no longer has jurisdiction over your
case and all questions regarding the case or the Second Circuits procedures should be
addressed to the Clerk of the Second Circuit.
Your Notice of Appeal should be filed in the Southern District Pro Se Office as soon as
possible within the 30-day time period (or 60-day time period if the case involves a party who is the
United States, a federal agency or federal employee). If, however, the 30-day period has passed and
you still wish to appeal, you should file in the Southern District Pro Se Office both a Notice of Appeal
and a Motion for an Extension of Time to File a Notice of Appeal (Motion). In that motion, you
must explain to the Judge why you should be allowed to appeal despite the lateness of your Notice
of Appeal. A form Motion for an Extension of Time to File a Notice of Appeal, and a form
combined Notice of Appeal and Motion for an Extension of Time to File a Notice of Appeal, are
included in this manual. If the Judge grants your motion, the appeal will be forwarded to the Second
Circuit. If the Judge denies your Motion for an Extension of Time to File a Notice of Appeal, the
motion still will be forwarded to the Second Circuit so that it may determine whether to grant your
motion.
Even if you proceeded pro se in the District Court, you can ask the Second Circuit to appoint
counsel for you for appeal.
Appeal Fees
The fee for filing your Notice of Appeal is $455. You may pay the $455 fee at the Southern
District Pro Se Office in cash, by credit card (Discover, Mastercard, Visa or American Express), or
by certified check or money order made payable to Clerk of Court, S.D.N.Y. Personal checks are
not accepted. Cash will not be accepted in cases submitted by mail.
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If you are unable to pay the $455 filing fee, you may request that the Judge grant you in forma
pauperis status (IFP status) and waive the appeal fee. You do this by submitting to the Southern
District Pro Se Office, along with your Notice of Appeal, an application to proceed in forma pauperis
on appeal. If IFP status had been granted by the Chief Judge at the start of your case and was not
revoked in the Courts final order or judgment, by ruling that an appeal will not be taken in good
faith pursuant to 28 U.S.C. 1915(a)(3), then your IFP status still is in effect and no fee nor
application to waive the fee is necessary. If, however, IFP status has been revoked or denied by the
Judge, a new IFP application must be filed with the Southern District Pro Se Office, which will
forward your IFP application to the Second Circuit for a ruling.
To ensure the efficient processing of your Notice of Appeal, you should either pay the $455
fee or, if you are unable to do so, you should submit to the Southern District Pro Se Office an
application to proceed in forma pauperis on appeal regardless of your initial IFP status. If the
application is unnecessary because your IFP status still is in effect, the Pro Se Office will return it to
you.
Interlocutory Appeals
Generally, only final decisions by the Judge can be appealed to the Second Circuit. In very
limited circumstances, you may appeal a non-final decision while your case is ongoing. These types
of appeals are called interlocutory appeals. The limited circumstances in which you may seek an
interlocutory appeal are set forth in 28 U.S.C. 1292. There are no exceptions to this list. In the
context of pro se cases, interlocutory appeals are generally permissible only from orders of the district
court granting, denying, or modifying injunctive relief. 28 U.S.C. 1292(a)(1). Generally, all other
decisions, including those relating to discovery matters, are not appealable while the case is still
pending in the district court.
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If you are bringing an interlocutory appeal, you must file a Notice of Appeal in the Southern
District Pro Se Office within ten (10) days of the date of the entry on the docket of the order being
appealed. Your Notice of Appeal will be processed and transmitted to the Second Circuit Court of
Appeals; the Second Circuit may, however, decline to hear your appeal because it is an impermissible
interlocutory appeal. As with an appeal from a final judgment, your Notice of Appeal for an
interlocutory appeal must be accompanied by either the $455 filing fee or your in forma pauperis
application. Unlike an appeal from a final judgment, a Notice of Appeal from a non-final judgment
meaning, an interlocutory appeal does not automatically stay the proceedings in the district court.
Alternatives to Appeals
There are some alternatives to an appeal that are available to you:
Motion for a New Trial or to Alter or Amend the Judgment (Rule 59)
Under Rule 59(a) of the Federal Rules of Civil Procedure, you may file a motion in the
Southern District Pro Se Office, to be decided by the Judge in your case, to request a new trial. Under
Rule 59(e), you may file a motion to alter or amend a final judgment entered in your case. In order
to file a timely Rule 59 motion under Rule 59(a) or Rule 59(e), you must file it in the Pro Se Office
within twenty-eight (28) days of the date of the entry of the final judgment on the Southern District
docket. If you file a timely Rule 59 motion with the Pro Se Office, your time to file a Notice of
Appeal (in order to appeal your case to the Second Circuit as of right) does not begin to run
until the Judge decides your Rule 59 motion. If you submit your Rule 59 motion at the same time
you submit your Notice of Appeal, the Notice of Appeal will not be filed until the Judge decides your
Rule 59 motion.
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Motion for Reconsideration or Reargument (Local Civil Rule 6.3)
You may file a motion for reconsideration or reargument in order to challenge any
determination by a Judge. The motion, which will be decided by the Judge on your case, must be
filed with the Pro Se Office and served on the opposing party within fourteen (14) days of the date
of the entry on the docket of the order being challenged. The motion must be accompanied by a
memorandum of law; it may not be accompanied by an affidavit or affirmation. The memorandum
of law should describe the controlling cases that you contend the Judge overlooked.
Motion for Relief from Judgment or Order (Rule 60)
If you want the Judge to correct a clerical mistake made in an order or judgment, you should
file a Rule 60(a) motion before your appeal is docketed in the Second Circuit.
Rule 60(b) governs all other motions for relief from a judgment or order. Such motions must
be filed within a reasonable time and not later than one year after the judgment being challenged. In
general, under Rule 60(b), the Judge may grant relief from a judgment for (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence . . . ; [or] (3) fraud, . . .
misrepresentation, or other misconduct of an adverse party. . . . Filing a Rule 60(b) motion does
not extend your time to appeal the final order or judgment of your case to the Second Circuit..
If you want to file a motion for relief under Rule 60(b) and you also intend to appeal to the Second
Circuit as of right from the final order or judgment, you must file your Notice of Appeal in the
Southern District Pro Se Office within 30 days (or sixty (60) days if the case involves a party who is
the United States, a federal agency or federal employee) of the date of the entry of the final order or
judgment. You may file your Rule 60(b) motion in the Pro Se Office at the same time you file your
Notice of Appeal or at any time thereafter. The Judge will review your Rule 60(b) motion and, if the
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Judge intends to grant it, will notify the Second Circuit so that the case can be returned to the
Southern District. If the Judge denies your Rule 60(b) motion, your appeal will proceed in the Second
Circuit.
Proceedings on Appeal Before the Second Circuit
The Second Circuit is an appellate court. As such, there is no trial, no jurors, no witnesses.
Testimony is not heard, and the parties themselves need not be present during the appeal. In the
Second Circuit, a panel of three Judges usually is assigned to hear an appeal. The Second Circuit will
only consider issues that the Southern District considered, based on the record from the Southern
District. Generally, a party may not submit additional evidence (documents or testimony) to the
Second Circuit that was not part of the file in the Southern District. If you want to have the record
on appeal corrected or enlarged, you must file a motion in the Southern District pursuant to Rule 10(e)
of the Federal Rules of Appellate Procedure.
In addition to the Southern District record, which will be forwarded to the Second Circuit, the
Second Circuit will consider a partys legal position as set forth by an appellate brief. The party
bringing the appeal, called the appellant, and the party against whom the appeal is brought, called the
appellee, each will be allowed to submit briefs to the Second Circuit. An appellate brief contains a
litigants legal and factual arguments as to why the Second Circuit should find in favor of that litigant.
The Second Circuit may allow oral argument, where both appellant and appellee (or their
attorney if they have one) are able to argue, in person, before a three-Judge panel, why the Second
Circuit should rule in their favor.
Once the Second Circuit reaches a decision on the appeal, both the appellant and the appellee
will receive a copy of that decision in the mail.
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Questions regarding Second Circuit procedures should be addressed to the Second Circuit
Clerks Office. The Southern District Pro Se Office cannot answer questions regarding Second
Circuit procedure.
The Clerks Office of the Second Circuit is located in Room 370 of the Daniel Patrick
Moynihan Courthouse at 500 Pearl Street in Manhattan. (There is no Pro Se Office in the Second
Circuit.) The mailing address for the Second Circuit is:
United States Court of Appeals for the Second Circuit
500 Pearl Street, Room 370
New York, N.Y. 10007
The telephone number of the Clerks Office is (212) 857-8500.
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GLOSSARY OF TERMS USED IN THIS MANUAL
Action A case or lawsuit.
ADR Stands for Alternative Dispute Resolution. Generally, this refers to
different methods parties can use to settle a case.
Adjourned Postponed or moved to a later date.
Affidavit A written statement of facts confirmed by the oath of the person making
it, before a notary public or other officer having authority to administer
oaths. See Affirmation, Declaration.
Affirmation A written statement of facts confirmed by the pledge of the person
making it and subjecting that person to penalties of perjury for any false
statements. The signature of a notary public is not needed for an
affirmation. See Declaration, Affidavit.
Affirmation of Service A document attached to any document submitted to the court in which
a party attests that a copy of the document was sent to (= served on) all
other parties in the case. A copy of the Affirmation of Service is not
sent to the other parties; it is attached only to the document submitted
to the court. Sometimes referred to as a Certificate of Service. See
Rule 5 of the Federal Rules of Civil Procedure.
Allegation A claim or statement of what a party intends to prove; the facts as one
party claims they are.
Amendment Changing, altering or correcting a document.
Answer The defendants written statement responding to a complaint, setting
forth the grounds for the defendants defense.
Appeal A review by a higher court of the judgment or decision of a lower court.
Appeals from the United States District Court for the Southern District
of New York are heard by the United States Court of Appeals for the
Second Circuit.
Appellant The party who appeals the lower courts decision.
Appellee The party against whom the appeal is taken.
Application to
proceed in forma
pauperis
A written request by a plaintiff, who cannot pay the filing fee for a
lawsuit, asking the Judge to waive the filing fee. A party filing a Notice
of Appeal also may file an Application to proceed in forma pauperis
on appeal, to request that the fee to file an appeal be waived.
Bench Trial A trial conducted without a jury. In a bench trial, the Judge determines
the law, the facts, and the outcome of the lawsuit.
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Brief Also called a Memorandum of Law. A written statement of a partys
legal position including a summary of the facts, a statement of the
questions of law involved, and the arguments and legal authorities upon
which the party relies.
Caption The caption is the title of the action. It includes the names of all
plaintiff(s) (the parties bringing the action) and the names of all
defendant(s) (the parties being sued) separated by the word against or
the letter v. for versus. The caption must appear on the top left-
hand corner of all papers submitted to the court and include the name
of the court, for this District that is the United States District Court for
the Southern District of New York. See Rule 10 of the Federal Rules
of Civil Procedure.
Case Management
Conference
The meeting in which the Judge, after discussion with the parties, sets
a schedule for various events in the case. See Rule 16 of the Federal
Rules of Civil Procedure.
Certificate of Service A certificate attached to any document submitted to the court in which
a party attests that a copy of the document was sent to (= served on) all
other parties in the case. A copy of the Certificate of Service is not sent
to the other parties; it is attached only to the document submitted to the
court. Sometimes referred to as an Affirmation of Service. See Rule
5 of the Federal Rules of Civil Procedure.
Challenge An objection to a prospective juror for a trial. A challenge for cause is
a challenge to a juror for which cause or a reason is alleged. A
peremptory challenge is a challenge to a juror without alleging any
cause or reason; a limited number of peremptory challenges is allowed
each side in any case.
Charge to the Jury The Judges instructions to the jury concerning the law that applies to
the case.
Cite or Citation A reference to a law, rule, judicial decision, or piece of evidence.
Civil Action Every lawsuit other than a criminal action.
Claim A statement made by a plaintiff in a complaint that the defendants
violated the law. Sometimes referred to as a Count or a Cause of
Action.
Clerk of Court The court official who is responsible for filing papers, keeping the
records and the court seal, issuing process, entering judgments and
orders, and providing certified copies of documents from the record.
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Closing Arguments Also called summation. After the presentation of all evidence at trial,
a statement made to the Judge and jury before deliberations begin in
which each party summarizes the evidence presented at trial and asks
that the law be applied in his/her favor.
Collateral Estoppel Once an issue of fact has been determined in a proceeding between two
parties, the parties may not relitigate that issue even in a proceeding on
a different cause of action. See Res Judicata.
Complaint The first document filed in a lawsuit, in which the plaintiff tells the
Judge and the defendants what happened, how the defendants violated
the law, how the plaintiff was injured and what relief or damages the
plaintiff wants. See Rules 8 and 9 of the Federal Rules of Civil
Procedure.
Conviction A judgment of guilt against a criminal defendant.
Costs An amount of money awarded to the successful party (and recoverable
from the losing party) solely as reimbursement for certain expenses in
prosecuting or defending the suit.
Counsel Attorney or lawyer.
Count A statement made by a plaintiff in a complaint that the defendants
violated the law. Sometimes referred to as a Claim or a Cause of
Action.
Counterclaim A claim made by a defendant against a plaintiff.
Court of Appeals A federal court which may review decisions by the District Court. The
Court of Appeals is higher than the District Court but under the United
States Supreme Court. Appeals from the Southern District of New
York are heard by the United States Court of Appeals for the Second
Circuit.
Court Reporter A person authorized by law to record testimony either in the courtroom
or at a deposition. The court reporter uses a small typewriter-like
machine to record testimony. The testimony is recorded onto paper
tapes and computer in shorthand and then transcribed. Any request
for transcripts must be made to the court reporter. Sometimes referred
to as a Court Stenographer.
Court Stenographer A person authorized by law to record testimony either in the courtroom
or at a deposition. See Court Reporter.
Courtesy Copy An extra copy of a court filing that is sent to the Judges chambers.
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Courtroom Deputy A court employee who assists the Judge in the courtroom by swearing-
in the jury and witnesses, marking evidence, and attending to the jury.
In addition, the Courtroom Deputy often is in charge of keeping the
Judges Calendar and handling administrative tasks for the Judge.
Cross claim A claim by one defendant against a co-defendant, usually for
contribution or indemnity.
Cross-Examination After a witness has given direct testimony, the opposing party may
examine or question the witness to verify, refute or to further develop
the testimony.
Damages Monetary compensation that may be recovered by a plaintiff who has
suffered a loss or injury through the unlawful act, omission, or
negligence of the defendants. Compensatory damages or actual
damages are damages awarded to a plaintiff to pay for the actual losses
suffered by the plaintiff (for instance, medical expenses). Punitive
damages are damages awarded in addition to actual damages when the
defendant has acted with particular malice, fraud, or recklessness as a
way to punish the defendant.
Declaration A written statement confirmed by the pledge of the person making it
and subjecting that person to penalties of perjury for any false
statements. The signature of a notary public is not needed for a
declaration. See Affirmation, Affidavit.
Default Judgment A judgment entered for the plaintiff when a defendant who has been
served with a summons and complaint fails to answer or otherwise
respond to the complaint. See Rule 55 of the Federal Rules of Civil
Procedure.
Defendant The person sued by the plaintiff. The person plaintiff claims caused
plaintiffs injures. Also, the party who is accused in a criminal case.
Deposition A question and answer session conducted under oath, before trial but
outside of court, in which a party asks a person (either a party or a non-
party) questions about the facts or issues of the case. A deposition is
oral (= verbal) testimony. The opposing party must be notified when
any deposition is scheduled so that that party can attend and also ask
questions. Deposition testimony may be used as evidence to support a
motion (such as a summary judgment motion), at trial, or in order to
obtain other discovery. See Rule 30 of the Federal Rules of Civil
Procedure.
Dicta Comments made by a Judge in an opinion that are not necessary to the
decision in the case.
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Disclosures, Initial Information you must automatically give to the other parties, even if
they do not ask for it. See Rule 26(a)(1) of the Federal Rules of Civil
Procedure. See Initial Disclosures.
Discovery The process by which the parties to a lawsuit gather information about
the facts and issues of the case. Discovery is conducted between the
parties by exchanging information such as documents, or it may include
obtaining information from non-parties. Standard discovery methods
are: interrogatories, depositions, requests for admissions, requests for
production of documents, and physical and mental examinations. See
Rules 26 to 37 and 45 of the Federal Rules of Civil Procedure.
Diversity of
Citizenship
One of two types of cases that federal district courts have jurisdiction
to hear. Diversity exists if none of the plaintiffs is a citizen of any state
in which any defendant is a citizen, and the actual amount in
controversy exceeds $75,000. See 28 U.S.C. 1332.
Docket The computer file, maintained by the court, listing the activity in each
case. It contains an index of each document filed with the court and
every order issued by the Judge, as well as other information. The Pro
Se Office is not responsible for inputting or correcting the information
on the docket; this is the responsibility of the Docketing Unit. Each
separate piece of information on the docket is called a docket entry.
The docket sheet is the print-out of the docket. You may receive a
free docket sheet of your case by making a written request to the Pro Se
Office.
Docket Number The case number. A docket number is made up of a two-digit number
(to signify the year), followed by the case type (either Civ. for civil
cases or Cr. for criminal cases), followed by a four- or five- digit case
number and followed by the Judges initials in parentheses. For
example, 09 Civ. 2345 (LAP) is the docket number for the 2,345 civil
th
case filed in the year 2009, and the case is assigned to Chief Judge
Loretta A. Preska. The cases docket number must appear on all papers
submitted to the court.
Document Any writings, drawings, graphs, charts, photographs, computer records
or other electronically stored information, pictures, maps, etc. Denotes
any record such as deeds, agreements, title papers, receipts and other
written instruments or data compilations used to prove a fact.
Electronically Stored
Information (ESI)
Information on computers or similar devices. ESI is discoverable. See
Rules 26 and 34 of the Federal Rules of Civil Procedure.
Entry of Judgment Recording the judgment on the docket. A partys right to appeal starts
from entry of judgment.
148
Evidence Any kind of matter, presented through witnesses, records or documents,
to prove or disprove a fact.
Ex Parte (Latin for from one party.) Communication between one party and
the Judge, without the other parties being notified or present. Except
in very limited circumstances (such as for settlement), ex parte
communication with the Judge is not permitted.
Exhibits Documents or other materials used as evidence at trial or for motions.
Federal Question One of two types of cases that federal district courts have jurisdiction
to hear. In federal question cases, the plaintiffs claims involve the
interpretation and application of the Constitution or laws of the United
States. See 28 U.S.C. 1331.
Federal Rules of
Appellate Procedure
The rules that govern appeals to the United States Courts of Appeals.
Cited as: Fed. R. App. P.
Federal Rules of Civil
Procedure
The rules that govern civil proceedings in the federal district courts.
Cited as: Fed. R. Civ. P.
Federal Rules of
Evidence
The rules that govern admission of evidence in the federal district
courts. Cited as: Fed. R. Evid.
File or Filing A document which is properly submitted to the court may be stamped
filed, recorded on the courts docket, and placed in the courts
record/file. Papers not properly prepared may be rejected by the Judge.
All papers from a pro se party are to be submitted to the Pro Se Office
for filing.
Good Faith Acting in good faith means having honest intentions. For example,
negotiating in good faith means coming to the bargaining table with an
open mind and a sincere desire to reach an agreement.
Habeas Corpus (Latin for that you have the body.) A writ (= order of the court) used
to bring a prisoner before the court to challenge the legality of a
conviction or detention. It also may be used to bring a prisoner before
the court to testify (= a writ of habeas corpus ad testificandum) or to be
prosecuted (= a writ of habeas corpus ad prosequendum).
Hearing A formal proceeding, similar to a trial, in which evidence is submitted
and witnesses are heard, with one or more legal issues to be determined.
Hearings are typically open to the public and held in the courtroom.
Hearsay A statement made outside of court by someone other than a witness,
offered to prove the truth of the matter asserted. Hearsay usually is not
admissible in evidence. See Rules 801 to 805 of the Federal Rules of
Evidence.
149
Holding (of a case) In legal research, the legal principal necessary for the decision of a case.
The holding of a case will tell you whether the case supports your
position.
Impeach To introduce evidence intended to contradict testimony or to question
the witnesss truthfulness or credibility.
In Forma Pauperis (Latin for in the manner of a pauper.) The permission given to a
person unable to afford the courts filing fee to sue (or appeal) without
payment of court fees.
Initial Disclosures The disclosures the parties in certain cases must serve, automatically,
without request from the opposing party, within fourteen (14) days of
their initial case management conference. See Rule 26(a)(1) of the
Injunction A temporary or permanent order by a Judge prohibiting or requiring the
performance of some specific act in order to prevent irreparable damage
or injury.
Interlocutory Appeal An appeal from a court order issued before judgment is entered in a
case. Such appeals normally are not permitted, except that a party has
a right to appeal some interlocutory orders, such as the denial of a
motion for a preliminary injunction. Most interlocutory appeals require
the Judges permission. See 28 U.S.C. 1292.
Interrogatories A discovery tool in which written questions are asked by one party and
served on an opposing party who must answer them in writing under
oath. See Rule 33 of the Federal Rules of Civil Procedure.
Judges Individual
Practices or Rules
The rules unique to each individual Judge that supplement the Federal
Rules of Civil Procedure and the Local Civil Rules of the Court. Also
referred to as the Judges Chambers Rules.
Judgment The official decree of the court determining the rights and obligations
of the parties in a case. A judgment officially closes the case and
triggers the parties right to appeal. Summary Judgment is a decision
by the Judge to end a lawsuit, before trial, based on evidence presented
in affidavits and exhibits, when there is no dispute as to the material
(important) facts of the case and one party is entitled to win as a matter
of law. Declaratory Judgment is a type of relief a plaintiff may
request in the complaint in which the plaintiff asks the court to declare
that his or her rights were (or were not) violated by the opposing party.
A Default Judgment is entered in favor of the plaintiff when a
properly-served defendant has failed to respond to the complaint. See
Rules 54 to 58 of the Federal Rules of Civil Procedure.
Jurisdiction The courts power or legal authority to hear and decide a case.
150
Jury A certain number of persons selected according to law and sworn to
decide matters of fact and declare the truth about matters laid before
them at a trial. Eight (8) jurors are typically selected to decide a civil
case, but in no event may fewer than six (6) jurors be selected.
Jury Instructions Also called the Jury Charge. The rules the Judge gives to the jury at
different times during the trial, but mostly at the end of the trial, to
explain what the jurys role is, how to view the evidence, and the law
that applies to the case. Before the trial begins, the parties must submit
to the Judge proposed jury instructions that the Judge can use to prepare
the instructions that will be read to the jury during the trial.
Jury Selection The process by which the jury is selected for a case. In federal district
court, the Judge, not the attorneys, asks prospective jurors a series of
questions (= voir dire) to ascertain the jurors abilities to sit on the jury.
The parties may submit a set of proposed voir dire questions to the
Judge for consideration.
Jury Trial A trial in which a jury is selected to decide which evidence to believe
and determine what actually happened. The Judge will instruct the jury
as to the law and the jury will apply the law to the facts and render a
decision as to who wins the case.
Litigant A party to a lawsuit.
Local Civil Rules A set of rules for a specific federal court that supplements the Federal
Rules of Civil Procedure. A copy of the Southern District of New
Yorks Local Rules is available on the Courts website.
Mandamus (Latin for we command.) It is a command of a higher court to either
a lower court or a public officer to perform a lawful duty.
Material Fact A fact that makes a difference or is significant, important or essential
to the case.
McKinneys Publisher of the set of legal books containing New York State laws.
The books are called McKinneys for short.
Mediation A method of alternative dispute resolution in which the parties appear
before a neutral mediator who tries to help the parties reach a mutually
agreeable settlement.
Memorandum of Law A written statement of a partys legal arguments presented to the Judge.
Sometimes referred to as a Brief or Legal Brief.
Mistrial A trial that cannot stand because of some fundamental error. When a
mistrial is declared, there is no decision on the merits of the case and
the trial must start again with the selection of a new jury.
151
Moot Having no practical significance. For example, a motion for an
extension of time may be considered moot if the Judge had already
given the party more time.
Motion A formal request that the Judge issue a specific order. Motions are
usually submitted in writing, but in certain limited circumstances (such
as at a hearing or at trial) the motion may be made orally.
Motion for Default
Judgment
A motion made by the plaintiff when the defendant has failed to answer
or otherwise respond to the complaint after being served. See Rule 55
of the Federal Rules of Civil Procedure.
Motion for Extension
of Time
A motion made by either party for additional time to do something.
Frequently, these applications are made in the form of a letter to the
Judge (through the Pro Se Office).
Motion for Judgment
as a Matter of Law
In a jury trial, a motion made by either party before the case is
submitted to the jury arguing that the opposing partys evidence is so
legally deficient that no jury could reasonably decide the case in the
opposing partys favor. See Rule 50 of the Federal Rules of Civil
Procedure.
Motion for Judgment
on the Pleadings
A motion made by either party requesting that the Judge rule in that
partys favor based solely on the pleadings (complaint and answer).
Generally, when this motion is made, the defendant asserts that even if
the facts in plaintiffs complaint are true, the claim is legally barred.
The motion is often used in Social Security Appeals cases to ask the
Judge to decide the case based on the administrative record. See Rule
12(c) of the Federal Rules of Civil Procedure.
Motion for New Trial A motion made by either party arguing that a new trial should be held
because of an error in the trial. For instance, a motion for a new trial
may be made because the jurys verdict in the first trial is against the
clear weight of the evidence. See Rule 59 of the Federal Rules of Civil
Procedure.
Motion for
Reconsideration or
Reargument
A motion made by either party asking the Judge to considering
changing a prior order that determined a motion on the ground that the
Judge overlooked matters or controlling decisions. See Local Rule 6.3.
Motion for Relief
from a Judgment or
Order
A motion made by either party asking the Judge to consider changing
a prior decision based on either misinformation, mistake, fraud, new
information, or other stated reasons. See Rule 60 of the Federal Rules
of Civil Procedure.
152
Motion for Sanctions A motion made by either party arguing that a person should be punished
by the Judge because of certain conduct during the litigation. The
punishment imposed can be monetary in nature, or can result in a
document or evidence being struck from the record or the case being
dismissed.
Motion for Summary
Judgment
A motion made by either party (but most frequently by the defendant),
generally at the close of discovery, arguing that there are no material
facts in dispute and that, based on the law, the moving party should
win. See Rule 56 of the Federal Rules of Civil Procedure.
Motion In Limine A pretrial motion made by either party to obtain rulings on the
admission of certain evidence prior to the trial.
Motion to Amend or
Alter the Judgment
A motion made by either party after the entry of judgment arguing that
a mistake was made in the judgment that should be corrected. See
Rule 59 of the Federal Rules of Civil Procedure.
Motion to Compel A motion made by either party asking the Judge to order a party or non-
party to make disclosures, to answer discovery requests, or to provide
a more detailed response to discovery requests. Before the motion is
made, the party is required to try to resolve the dispute informally and
request a pre-motion conference. See Rule 37 of the Federal Rules of
Civil Procedure.
Motion to Dismiss A motion made by a defendant arguing that there are legal problems
with the way the complaint is written, filed or served, and asking that
the Judge dismiss some or all of the claims. See Rule 12 of the Federal
Motion to Strike A motion made by a either party arguing that a document or testimony,
or a portion of such, should be deleted from the official court record.
Notary Public A public officer who is authorized by the state to administer oaths and
to attest to the authenticity of signatures. Many lawyers, paralegals, and
court reporters are notaries.
Notice of Appeal A notice filed with the district court, and served on the other parties to
the suit, stating that a party is appealing. The Notice of Appeal contains
no legal arguments, but serves only to identify the party taking the
appeal and the order or judgment being appealed. Filing the notice of
appeal with the Pro Se Office in the district court is the first step in an
appeal.
153
Notice of Deposition Notification made in writing to the witness, as well as all parties in the
case, of your intention to depose the witness. The Notice must be made
a reasonable time in advance of the deposition. The Notice must
include all of the information required by Rules 26 and 30 of the
Nunc pro tunc (Latin for Now for Then.) Retroactively ordered by the Judge. For
example, the Judge may order a copy of a document which had been
lost in the mail to be filed nunc pro tunc as of the date the original
should have been received.
Objections to Report
& Recommendation
A statement from a party explaining why that party believes a
Magistrate Judges Report & Recommendation should not be adopted
by the District Judge. The parties have fourteen (14) days to file
objections to the Report & Recommendation. See 28 U.S.C. 636.
Opening Statement In a trial, the first opportunity the parties have to address the jury and
the Judge, and inform them of what they intend to prove through the
use of evidence.
Opinion The Judges written decision, which typically includes a statement of
facts, points of law, and an analysis applying the law to the facts.
Opposing Party Your adversary. The party you are suing or who is suing you. In the
context of a motion, the party against whom the motion is made.
Order to Show Cause A Judges Order directing a party to explain why the party did or failed
to do something or why the Judge should or should not grant some
relief.
Overrule (an
objection)
If one party has an objection to testimony or evidence being submitted,
the Judge may overrule the objection and permit the testimony or
evidence to proceed.
PACER Public Access to Electronic Court Records. Docket information is
available to the public on the internet via PACER.
Parties The plaintiff(s) and/or defendant(s) in the case.
Perjury A deliberate false or misleading statement made under oath.
Plaintiff The party who brings the suit, by filing the complaint asking for the
enforcement of a right or the recovery of relief from a wrong.
Prayer for Relief The last section of the complaint, stating what damages the plaintiff
wants and what else the plaintiff wants the Judge to do (for example,
injunctive or declaratory relief).
154
Pretrial Conference A conference with the Judge attended by the parties (or counsel) to
clarify the issues, to set a schedule for discovery, motions and further
proceedings, and to discuss settlement. See Rule 16 of the Federal
Prima Facie (Latin for At first sight.) A prima facie case presents enough
evidence for the plaintiff to win the case barring any defenses or
additional evidence presented by the defendant.
Prison Mailbox Rule A document submitted by a pro se prisoner for filing is deemed filed
as of the date the prisoner delivers the document to prison officials for
mailing, rather than the date it is actually received by the court.
Privilege Attorney-Client Privilege prevents the attorney from disclosing
confidential communications with a client. The Doctor-Patient
Privilege prevents the doctor from disclosing confidential medical
information.
Pro Bono (Latin for For the Good.) Legal services provided free of charge,
usually for persons unable to afford a lawyer.
Pro Se (Latin for In his own behalf.) Representing oneself in court, without
an attorney.
Process Server A professional hired by the plaintiff to serve the defendant with the
summons and complaint. If the plaintiff asked the defendant for a
waiver of service and was refused, the plaintiff may be reimbursed for
any costs and fees associated with hiring a process server to effect
service. See Rule 4 of the Federal Rules of Civil Procedure.
Proof of Service A document which confirms that another document was served on the
parties. Proof of Service for the Summons and Complaint is located on
the back of the summons and must be completed by the person who
served those documents. An Affirmation or Certificate of Service may
be used as proof of service for all other documents.
Protective Order A Judges order prohibiting or limiting a party from proceeding with a
legal procedure (for example, limiting certain types of discovery as
unduly burdensome).
Quash the Subpoena An application by a non-party witness to the Judge requesting that the
non-party need not appear for a deposition and/or produce documents
at the date, time and place listed in the subpoena.
Redirect Examination At trial, after the opposing party has cross-examined a witness, the
party who originally called the witness to testify may ask the witness
questions regarding any of the answers given on cross-examination.
155
Referring Judge The District Judge who refers all or some portion of the case to a
Magistrate Judge.
Remand To send back. The act of the appellate court in sending a case back to
the district court for further action.
Reply The response to an opposition to a motion.
Report &
Recommendation
The Magistrate Judges decision on a dispositive matter in which the
Magistrate Judge advises the District Judge how the matter should be
decided. After the Report & Recommendation is issued, the parties
have fourteen (14) days to file Objections to the Report &
Recommendation. The District Judge will review the Report &
Recommendation and any Objections and either adopt, reject, or modify
the Report & Recommendation. See 28 U.S.C. 636.
Request for
Admission
A discovery tool in which one party asks another party in writing to
admit the truth of any statement or the authenticity of a document or to
admit the application of law to any fact. See Rule 36 of the Federal
Request for Waiver of
Service
A method by which the plaintiff asks the defendant to forgo formal
service of the summons and complaint. If the defendant agrees to
waive service, the defendant is granted an automatic extension of time
to respond to the complaint. If the defendant refuses to agree to waive
service, the plaintiff later may recoup any fees and costs associated with
formally serving the defendant. See Rule 4 of the Federal Rules of
Civil Procedure.
Res Judicata (Latin for A Matter Judged.) The principle that a matter generally
may not be relitigated once it has been decided on the merits.
Reversal The act of an appellate court overturning a decision of a lower court
because of an error.
Sanction A punishment or penalty, monetary or in another form, that the Judge
may impose on a person in certain circumstances. For example, the
Judge may impose a sanction upon a party that violates an order, fails
to appear at a scheduled proceeding, or files frivolous complaints or
motions. See Rules 11 and 37 of the Federal Rules of Civil Procedure.
Service Providing a copy of a document to other parties. See Rule 5 of the
156
Service of Process Providing a copy of the summons and complaint to the defendant as
required by Rule 4 of the Federal Rules of Civil Procedure. Service
must be done by a person over the age of 18 years who is not a party to
the lawsuit. A trusted family member or friend may serve the summons
and complaint or a professional process server may be hired. The
defendant must be served within 120 days from the date the summons
is issued. See Rule 4 of the Federal Rules of Civil Procedure.
Side Bar A conference in which the Judge calls the parties to one side of the
bench, outside of the jurys hearing, to discuss an issue during trial.
Standing A partys right to make a legal claim. Generally, a plaintiff has
standing in federal court if the plaintiff shows that the defendants
conduct injured him or her and that the right that was violated is one
that is enforceable.
Standing Order A Judges Order that applies to lawsuits or certain circumstances that
are heard by that particular Judge. A Standing Order of the Court is an
Order issued by the Chief Judge to deal with a recurring situation that
the Federal Rules of Civil Procedure and the Local Civil Rules do not
address. Standing Orders have the full effect and power as all other
judicial orders.
Statute of Limitations Laws requiring that a lawsuit be filed within a certain amount of time
after the injury. Some federal laws specify their statute of limitations.
If a federal law does not specify the statute of limitations, then the
federal courts will use the statute of limitations from the state law that
is most closely related.
Stipulation A written agreement voluntarily signed by parties in a case.
Strike To delete a document or testimony, or any portion of such, from the
official court record. Also, to remove a potential juror from the jury.
Sua Sponte (Latin for Of its own will.) When the Judge makes a determination
on his or her own, without a motion from a party.
Subject Matter
Jurisdiction
The power of the court to hear certain types of cases. The federal
district court has subject matter jurisdiction over federal question cases
and diversity of citizenship cases. See 28 U.S.C. 1331, 1332.
Subpoena (Latin for Under Penalty.) A court document commanding a non-
party to appear for trial or a deposition or produce documents on a
specific date, time and place. The same form is used for a subpoena
ad testificandum and subpoena duces tecum. See Rule 45 of the
157
Subpoena ad
testificandum
A court document commanding a non-party to appear for trial or a
deposition on a specific date, time and place. See Rule 45 of the
Subpoena duces tecum A court document commanding a non-party to produce documents
listed in the subpoena on a specific date, time and place. See Rule 45
of the Federal Rules of Civil Procedure.
Summons A document notifying the defendant that an action has been commenced
against the defendant in the court, and that he or she is required to
appear and answer the complaint. The plaintiff must serve a copy of the
summons and the complaint on the defendant within 120 days of the
date listed on the summons.
Sustain (an objection) Agrees with the objection. If a party objects to some evidence and the
Judge sustains the objection, the evidence will not be admitted or the
question will not be answered.
Temporary
Restraining Order
(TRO)
An order prohibiting a person from acting in a way likely to cause
irreparable harm. This differs from an injunction in that it may be
granted immediately, without notice to the opposing party and without
a hearing. It is intended to last only a short time until a hearing can be
held. See Rule 65 of the Federal Rules of Civil Procedure.
Testimony Evidence given by a witness under oath at a deposition or at trial, or in
an affidavit.
Transcript The typewritten transcription of the court reporters shorthand notes of
the proceedings in a trial, hearing or deposition.
United States Code
(U.S.C.)
Federal laws are compiled in the United States Code. Cited as: U.S.C.
Vacate To invalidate or cancel a prior order so that it no longer has any effect.
Venue The specific court in which a lawsuit is filed.
Verdict The decision or finding made by the jury upon matters or questions
submitted to them at the trial.
Voir Dire The preliminary examination of potential jurors to determine their
competency and impartiality to serve on a case. In federal court, the
Judge generally asks each potential juror a series of questions designed
to reveal any bias the juror may have that would prevent that person
from being fair and impartial.
Waiver of Service The defendants agreement to forgo formal service of the summons and
complaint. See Request for Waiver of Service; see Rule 4 of the Federal
158
With Prejudice Action taken with the loss of all rights. A dismissal of the lawsuit with
prejudice prohibits the plaintiff from filing another complaint raising
those same claims.
Without Prejudice Action taken with the right to reassert the same matter at a future date.
For example, a dismissal of the claims without prejudice permits the
plaintiff to file another complaint raising those same claims.
Sometimes, the Judge will also grant the plaintiff leave to amend or
leave to replead his allegations.
Witness A person who has personal knowledge regarding the relevant facts of
the case.
Writ A written command, issued from the court, requiring the performance
of a specific act.

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A MANUAL FOR PRO SE LITIGANTS APPEARING

BEFORE THE UNITED STATES DISTRICT COURT FOR

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