Civil Procedure Checklist

1. Preliminaries
a. Rule 65 – TRO/Preliminary Injunction
i. Injunction (Chalk Case) – Governed by Rule 65
1. Preserve the status quo from before problem arose
2. Losing something that cannot be made whole by monetary damages
3. Preliminary à Until end of trial
4. Permanent à Essentially the remedy
5. 3-part Test **Looked at holistically** – 1) Probable success on the merits,
2) Irreparable injury to movant, 3) balance of hardships
ii. TRO
1. Immediate and irreparable harm **before it can be heard**
2. Potentially catastrophic
b. 28 USC § 455 – Judicial Disqualification
i. Personal Bias/Prejudice/Personal Knowledge of Dispute facts
ii. Former Firm
iii. Role in case as govt employee
iv. Financial interest – includes spouse and minor children
v. 3rd degree relationship
c. Rule 11 – Sanctions – Zuk v. EPPI
i. Purpose: Keeps plaintiffs from frivolous pleasing of knowing something is true
but filing a claim to the contrary anyway
ii. Governs everything other than discovery
iii. Sign everything
iv. Certifies everything as true “to the best of your knowledge and belief reasonable
under the circumstances”
1. 11(b)(1) - No improper purpose
2. 11(b)(2) - Warranted by existing law OR good faith argument for
modification
3. 11(b)(3) - Have evidentiary support or are likely too after further
investigation
4. 11(b)(4) - Denials have evidentiary support
v. Sanctions
1. If any above violate *may* have sanctions (11c1) – 21 days to amend
(11c2)
2. 11(c)3 - Goal is deterrence
3. 11(c)5 - Monetary not an option against represented party (could be
against their lawyer)
d. 11d - Preserving Discovery
i. Rule 11 doesn’t apply to discovery
2. Plaintiff Complaint
a. 8(a)- Claim for Relief
i. Purpose: Notifies defendant of allegations against them to properly defend
themselves
ii. Short and plain statement on jurisdiction
iii. Short and plain statement showing plaintiff is entitle to relief
iv. Preliminary assessment of the merits by the court – is this valid?
 v. Who, what, when, where, and how – NOT just legal conclusions – identify every
essential element of a legal claim, include allegations to support
vi. Failure to comply – subject to 12(b)6 motion to dismiss
b. 8(d) – Concise and Direct Statements, Alt. Statements, Inconsistency
i. Allows for inconsistent pleadings, exception is if the plaintiff knows the truth –
could be either of the scenarios in the claim, plaintiff doesn’t know for sure
ii. If you present both claims, you can’t recover under both claims (McCormick)
c. 9(b) – Fraud
i. Heightened pleading standard for securities cases (Tellabs)
ii. Has to be taken literally with specific statements à if it isn’t explicitly fraud, do
not try
iii. Need everything you need in 8(a) + explicit claims of fraud
d. 10 – Form of pleadings
i. Presented in numbered paragraphs
e. 15 – Amendments
i. Amend once it is a matter of course
ii. 21 days after service or after answer is filed
iii. After 21 days: can amend with written consent of the opposing party, or ‘when
justice so requires’`
3. Defendant’s Answer
a. Pre-Answer Motions
i. 12(g) – Limitations on Further Motions
1. Aggregate defenses and must not make another motion under Rule 12 that
was available to the party but omitted from an earlier motion
a. Only exception: if information was not available at the time
ii. 12(h) – Waiving/Preserving Certain defenses
Least Favored – Limited Favored Most Favored
window of opportunity -
 Personal jurisdiction  Failure to state a Subject-matter jurisdiction
 Improper venue claim only
 Insufficient process  Failure to join a party
 Insufficient service of
process
 Can be raised in;  Can be raised in: Can be raised at any time
 Pre answer motion  Pre-answer motion
 Answer if no pre  Answer
answer motion filed  12c motion for
 Amended in matter of judgement on the
cause window pleadings
 At trial
 WAIVED if:
 Filed 12b pre answer
and defense was
omitted
 No pre answer motion
filed, 12b defenses
omitted from answer
AND out of 3 week
matter of course
window

iii. 12(e) – Motion for a more Definite Statement

1. Need enough from the plaintiff to craft a response – used to challenge
plaintiff’s complaint
2. If you have enough information to admit or deny, cannot use 12e
3. Improper to use to seek facts leading to dismissal
iv. 12(f) – Motion to Strike
1. Scandalous, immaterial, impertinent information
v. 12(b)(6) – Iqbal/Twombly
1. Can raise with no claim or vague claim for relief, sloppy pleading, failure
to include allegation for one or more of the elements of the claim
2. “failure to state a claim on which relief can be granted”
3. If law doesn’t support your claim
4. Twombley: Plausible, not just possible, has to rule out independent
conduct. Factual allegations, not just bare min conclusions.
5. Iqbal: Context-specific plausibility,
6. Cannot be used to dispute facts
vi. 12(b)(7) – Not able to join a required party
1. If you can’t find them/don’t know who they are à should litigation
continue without them?
b. Default/Relief from Default Judgement
i. Rule 55
1. if defendant does nothing with the complaint à default
2. Triggered if no answer in 21 days
ii. Rule 60 – relief from default judgement
1. Need a good reason, but you get a chance to defend why it shouldn’t be
default
2. Has to not prejudice the defendant – if things happen to hurt the plaintiff’s
cause at this time, that is considered
3. If it is not willful, interest in doing justice has to outweigh the delay
c. Answer
i. 8(b) – Admissions/Denials
1. Go through and admit or deny each claim in each paragraph. You can
admit in part, deny in part, plead insufficient evidence
2. Do not plead insufficient information when you have a means of obtaining
the information (Crompton)
ii. 8c – Affirmative Defenses
1. Explanations/excuses for the claims – no matter if they are admitted or
denied
iii. 13(a) – (b) – Compulsory/Permissive Counter Claims
1. Compulsory: arises out of the same transaction or occurrence or the same
series of transactions or occurrences. Same evidence has to apply to
achieve the goal of efficiency
2. Permissive: same players but different set of events. **For jurisdiction
purposes, have to be able to stand on their own in federal court**
iv. 13g – Crossclaims
1. Usually defendant v. defendant
 2. Has to relate to subject matter of the original action
3. Not tool to bring in new parties to a litigation – existing co-defendants
4. Reconfiguration/Joinder of the Parties
a. Rule 18 – Joinder of Claims
i. P can sue D for as many things as he wants as long as there is subject matter
jurisdiction
b. Rule 19 – Required Joinder of Parties
i. Sets the floor for necessary parties
ii. Defendant uses Rule 19 to determine if anyone is missing from list plaintiff
provides
iii. If they are a required party using Rule 19 and you can’t find them/can’t join them
for whatever reason (would break diversity, etc) – use 12(b)(7) to determine if
litigation should continue without them
iv. Questions:
1. Required party under 19(a)(1)(A) and a(1)(B)
2. Is joinder feasible?
3. If infeasible à should it be dismissed? Things to consider here:
a. Prejudice
b. Extent to which the court can avoid the prejudice
c. With the judgement without the absentee be adequate
d. Is there another mechanism for relief if it is dismissed?
c. 20 – Permissive Joinder of Parties
i. Right to joint, several, alternative relief or relief against them
ii. Arises out of the same transaction, occurrence, series of
transactions/occurrences
iii. Any common question of law or fact
iv. Plaintiffs do the joining, defendants challenge
d. Rule 21 – Misjoinder/Nonjoinder
i. Ceiling exceeded by plaintiff – allows them to get rid of parties or sever them
ii. Missed someone who should be added
iii. Allows for corrections
e. Rule 14 – Impleader
i. Very specific relationship – “derivative liability” (Clark Case with the repo)
ii. If D is liable to P, then 3rd party is liable to D
iii. Indemnification, contribution, breach of warranty
f. 22/28 USC § 1335 – Interpleader
i. Claim to a stake in the same specific thing – like an insurance policy
ii. Bring together all of the claims to that specific stake into one action
g. Rule 23 – Class Action
i. Purpose: way for many parties to sue under the same issue, financially viable
way of getting justice. Common question of law or fact
ii. Rule 23(a)
1. Numerosity – more than what is manageable, depends on circumstances of
the case
2. Commonality – common questions of law or fact, one or two reps for the
whole class, issues need to be common of the whole class to resolve
3. Typicality – overlap with commonality, but CLAIMS of rep are typical of
the whole class
 4. Adequacy of representation – rep has a decent lawyer, not antagonistic to
the class
iii. Rule 23(b) – 3 forms of Class Action
1. Key issues need to predominate for litigation, to such an extent that it only
makes sense to have a class action
2. Class action superior to other methods
3. Catch-all
h. Rule 24 – Intervention
i. Motion is timely
ii. Movant claims an interest relating to property or transaction subject to the action
iii. Disposition may as a practical matter impair movant’s ability to protect its interest
iv. “unless” applicant’s interest is adequately protected by existing parties
v. 24B
1. Common question of law or fact
2. Will intervention prejudice any of the parties
5. Discovery/Disclosure
a. Purposes of Discovery: To gather information before trial – allow better access to the
truth. Gets to the contested issues – helps the parties avoid surprises at trial and puts the
writing on the wall. If all the evidence is for one party, could avoid trial all together
b. Rule 26(a) – Disclosure
i. Not Judge driven – relies on the parties to play nice.
ii. Required but parties do not have to disclose anything that is adverse to their own
case
iii. Two parts to the process:
1. Initial Disclosure
a. Identifying the people who have information important to your
claims or defenses
b. If relying on documents - copy or description of category of docs
and location
i. Limited to docs disclosing party may use to support its
claims or defenses
c. Computation of damages claimed
d. Insurance agreements
2. Pretrial disclosure - 26(a)(3)
a. ID expected/possible witnesses
b. Designate the witnesses whose testimony will be deposed
c. ID expected or possible documents/exhibits
c. 26(f) – Conference
i. Planning for discovery
ii. Each side gievs their plan, agree on timing, form, requirements
iii. Issue claims of privilege or protection, agree on limitations
d. Discovery Devices
i. Depositions – Rule 27, 30 – 32 - oral or written. No presiding judge or jury, rules
of evidence don’t apply. Very expensive but helps get the most information
possible. Anyone with relevant information, not limited to just parties to the
lawsuit
ii. Interrogatories – Rule 33 - questions for opposing parties that they have to
answer. ONLY parties, no non-parties. 25 questions. Can’t really lie, asking for
basic info that is uncontestable, helps parties go into depositions intelligently
 iii. Document Discovery – Rule 34 - limited to documents of the parties, but can
subpoena for outside docs. Most reliable source of evidence you have
1. Electronic docs – if they are in an undesirable format, can go before a
judge to determine who bares the cost of converting them
iv. Physical and Mental Exams – Rule 35 - subject to judge’s approval. Party that is
asking for it pays for it and picks the doctor
1. JUST parties
v. Request for Admission – Rule 36 – ask to admit stuff that was clearly true but not
admitted in complaint or answer. Easy way to make things a non-issue, never
going to be controversial information.
e. Scope of Discovery – 26(b)(1)
i. Proportional to the needs of the case
ii. Relevant to the party’s claim
iii. Likely benefit has to outweigh the burden and expenses
iv. 26c Protective Order – any person from whom discovery is sought may move for
protective order to “protect from annoyance, embarrassment, oppression, or undue
burden or expense”
f. Discovery Exceptions
i. 26(b)(3)/26(b)(5) – Work Product Protection – “In Anticipation of
Litigation”
1. Preserves the value of the adversarial process
2. If the opposing party can get that information on their own – work product
protection
3. Need to be incentivized to induce the true. Discourage bad preparation,
would just wait for the other party to do the work which could lead to no
one doing the work
4. Only discoverable when:
a. Satisfies 26b1 (fits scope of discovery)
b. There is a substantial need
c. Cannot obtain equivalent on their own without undue hardship
5. Hickman case protects oral and written work of lawyers only
6. 26b3 protects lawyer AND party work – written only
ii. Common Law/26(b)(5) – Attorney/Client Privilege
1. Purpose: to incentivize people to disclose things they maybe would not
otherwise if they thought it was discoverable
a. Communication between attorney and client
b. For the purposes of obtaining legal advice or services
c. Kept confidential
2. Originated in common law
3. Facts themselves are still discoverable via definition – just cannot say “tell
me what you told your lawyer” – have to pose the actual question
iii. 26(b)(1),(3),(4) – Experts
1. Experts retained in anticipation of litigation who will not tesify are only
subject to discovery IF
a. Exceptional circumstance
b. Impracticable to obtain facts or opinions on the same subject by
other means (i.e. if they hired all of the experts in the world on a
particular topic)
2. Testifying experts can be deposed (26b4)
 3. Parties must disclose testifying witnesses at least 90 days before trial
(26a2)
iv. 37- Motion to Compel
1. Have to show you have tried to the best of your ability to work it out
2. Loser pays attorney fees unless position was justified and awarding fees
would be unjust
3. Also applies to bad answers
4. Failure to comply – 37b – sanctions are possible
a. Strike pleadings, dismissal/default, taking facts as established, not
allowing them to raise specific claims or defenses
v. 26(g)
6. Trial
a. 56(a)/(c) – Summary Judgement
i. Once all of the claims are in, discovery is done – decide whether to proceed
ii. Does NOT assume all facts are true
iii. Looking to see if evidence is sufficient to go to trial – is there a genuine issue of
material fact?
1. If no à summary judgement
b. 56(a) – Movant’s Burden
i. Movant must show there is no genuine issue of material fact – no reasonable jury
could find for the non-movant
ii. Shifts the burden of production to the non-movant to show there is evidence of an
issue of material fact to continue to trial

No genuine issue of material Parties have shown a genuine P has shown that all material
fact that supports P --> SJ for issue of material fact --> No SJ facts are in their favor and D
D has not countered -->SJ for P

c. 56(b)/(d) – Timeliness
d. 59 – New Trial
e. 50 (a)/(b) – JMOL
f. 60 – Relief from Judgement