Compendium

Federal Civil Procedure Deep Dive

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Federal Civil Procedure Deep Dive

The Federal Rules of Civil Procedure (FRCP) govern civil litigation in the United States district courts. Adopted September 16, 1938, under the Rules Enabling Act of 1934 (28 USC § 2072), the Rules dismantled the antecedent common-law / equity distinction in federal courts and replaced procedural-state divergence (then governed by the 1872 Conformity Act) with a unified federal system. The 86 numbered rules have been amended dozens of times — most consequential modern amendments are 1983 (discovery management), 1993 (initial disclosures), 2000 (Rule 26(a)(1) tightening), 2006 (e-discovery), 2007 (general restyling), and 2015 (proportionality + Rule 37(e)).

This note covers the architecture from filing (Rules 3-5), pleading (7-12), party joinder and class actions (17-25, 23), discovery (26-37), pretrial and dispositive motions (16, 56), trial (38-53), judgment (54-63), and appeals (64-71) plus the related jurisdictional doctrines (personal jurisdiction, subject-matter jurisdiction, Erie, venue, removal, preclusion). It is the procedural backbone that every federal litigator carries in their head.

See also

Rule 1 — Scope and Purpose

These rules govern the procedure in all civil actions and proceedings in the United States district courts … They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.

The 2015 amendment added “and the parties” — parties share responsibility for proportional, efficient litigation. The triad of “just, speedy, and inexpensive” remains the touchstone. Mass. Mutual Life Ins. v Russell, 473 U.S. 134 (1985) — Rules interpreted to effectuate this purpose.

Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction. Kokkonen v Guardian Life Ins. Co, 511 U.S. 375 (1994) — presumption against federal jurisdiction; party invoking has burden of establishing.

Federal-question jurisdiction — 28 USC § 1331

“All civil actions arising under the Constitution, laws, or treaties of the United States.”

  • Well-pleaded complaint rule — Louisville & Nashville R.R. v Mottley, 211 U.S. 149 (1908) — federal question must appear on face of plaintiff’s complaint (not anticipated defense or counterclaim).
  • Grable + Empire embedded-federal-issue — Grable & Sons Metal Products v Darue Engineering & Mfg., 545 U.S. 308 (2005); Gunn v Minton, 568 U.S. 251 (2013) — state-law claim with embedded federal issue creates federal-question jurisdiction only if: (i) necessarily raised; (ii) actually disputed; (iii) substantial; (iv) capable of resolution without disrupting federal-state balance.
  • Holmes “creation” test — federal-question generally if federal law creates the cause of action.
  • § 1338 patent/copyright/trademark exclusive jurisdiction — federal courts exclusive for patent + copyright; concurrent for trademark.

Diversity jurisdiction — 28 USC § 1332

  • Complete diversity — Strawbridge v Curtiss, 7 U.S. (3 Cranch) 267 (1806) — every plaintiff diverse from every defendant.
  • Amount in controversy — exceeding 50,000 in 1996; from $10,000 in 1958).
  • Citizenship of natural persons — domicile (physical presence + intent to remain). Mas v Perry, 489 F.2d 1396 (5th Cir 1974).
  • Citizenship of corporations — state of incorporation + principal place of business. Hertz Corp v Friend, 559 U.S. 77 (2010) — “nerve center” test for PPB.
  • LLCs and partnerships — citizenship of all members/partners. Carden v Arkoma Associates, 494 U.S. 185 (1990); Americold Realty Trust v ConAgra Foods, 577 U.S. 378 (2016).
  • Class Action Fairness Act 2005 (CAFA) (28 USC § 1332(d)) — class actions over $5M aggregated and minimal diversity (any plaintiff diverse from any defendant); allows removal of class actions formerly trapped in state court.

Supplemental jurisdiction — 28 USC § 1367

  • § 1367(a) — jurisdiction over claims forming part of “same case or controversy” (Article III). Codifies pendent and ancillary jurisdiction. United Mine Workers v Gibbs, 383 U.S. 715 (1966) — “common nucleus of operative fact.”
  • § 1367(b) — limits in diversity cases (cannot use supplemental jurisdiction to evade complete-diversity rule, e.g., Rule 14, 19, 20, 24 plaintiff-side joinder).
  • § 1367(c) — discretionary decline factors (novel state-law issue, state claims predominate, federal claims dismissed, exceptional circumstances).

Removal — 28 USC §§ 1441-1455

  • § 1441(a) — defendant may remove if original federal jurisdiction.
  • § 1441(b)(2) — “forum-defendant rule” — diversity case not removable if any defendant is a citizen of the forum state. “Snap removal” — pre-service removal evading the rule has been upheld in Second, Third, Fifth Circuits.
  • § 1442 — federal officer removal.
  • § 1443 — civil rights removal.
  • § 1446 — procedure (30 days from receipt of pleading; 1-year cap for diversity removal under § 1446(c)(1)).
  • § 1447(c) — remand for procedural defects (must be raised within 30 days) or lack of subject-matter jurisdiction (any time).
  • § 1453 (CAFA removal) — easier removal of class actions.

Erie doctrine

Erie Railroad v Tompkins, 304 U.S. 64 (1938) — overruled Swift v Tyson, 41 U.S. 1 (1842). Federal courts sitting in diversity must apply state substantive law (no “federal general common law”).

The Erie-Hanna-Gasperini analysis:

  • Erie (1938) — federal courts must apply state substantive law.
  • Guaranty Trust v York, 326 U.S. 99 (1945) — “outcome-determinative” test for substantive/procedural distinction.
  • Byrd v Blue Ridge Rural Electric, 356 U.S. 525 (1958) — federal interest in own procedure can override outcome-determinative.
  • Hanna v Plumer, 380 U.S. 460 (1965) — when a Federal Rule is on point and within Rules Enabling Act authority + constitutional, the FRCP controls (presumption of REA validity). When no Rule is on point, apply twin aims of Erie (discourage forum-shopping; avoid inequitable administration).
  • Gasperini v Center for Humanities, 518 U.S. 415 (1996) — accommodation of federal and state interests in new-trial standards.
  • Shady Grove Orthopedic Associates v Allstate, 559 U.S. 393 (2010) — Rule 23 class action permitted despite state statute prohibiting class for the claim; fragmented opinion left Hanna controlling.

Personal Jurisdiction

Origins

Pennoyer v Neff, 95 U.S. 714 (1878) — physical presence or consent. The territorial-power model.

International Shoe revolution

International Shoe Co v Washington, 326 U.S. 310 (1945) — replaced rigid presence with “minimum contacts” such that suit “does not offend traditional notions of fair play and substantial justice.”

Branches developed in subsequent cases:

  • General jurisdiction — defendant “at home” in forum; can be sued there on any claim. Goodyear Dunlop Tires Operations v Brown, 564 U.S. 915 (2011); Daimler AG v Bauman, 571 U.S. 117 (2014) — for corporations, generally only place of incorporation and principal place of business. BNSF Railway v Tyrrell, 581 U.S. 402 (2017) — confirmed strict Daimler limit. Mallory v Norfolk Southern Railway, 600 U.S. 122 (2023) — consent-by-business-registration upheld where state statute provides notice; revived a major basis for jurisdiction.
  • Specific jurisdiction — claim must arise out of or relate to contacts with forum. Bristol-Myers Squibb v Superior Court of California, 582 U.S. 255 (2017) — non-resident plaintiffs cannot sue California corporation in California state court on out-of-state injuries; rejected “sliding scale” theory.
  • Ford Motor Co v Montana Eighth Judicial District Court, 592 U.S. 351 (2021) — relaxed “arise out of” — claim need not be caused by forum contacts; sufficiently related contacts suffice (Ford sold cars in forum, accident in forum, even though specific car sold elsewhere).

Stream of commerce

World-Wide Volkswagen v Woodson, 444 U.S. 286 (1980) — purposeful availment required. Asahi Metal Industry v Superior Court, 480 U.S. 102 (1987) — fragmented; O’Connor plurality required “something more”; Brennan plurality found stream sufficient. J. McIntyre Machinery v Nicastro, 564 U.S. 873 (2011) — left split unresolved; plurality required “intentionally targeting” forum.

Internet jurisdiction

  • Zippo Mfg. v Zippo Dot Com, 952 F. Supp. 1119 (W.D. Pa. 1997) — sliding-scale by website interactivity (passive, interactive, or commercial).
  • Calder v Jones, 465 U.S. 783 (1984) — “effects test” for intentional torts targeting forum.
  • Walden v Fiore, 571 U.S. 277 (2014) — limited Calder; suit-related conduct must create substantial connection between defendant and forum (not just plaintiff’s contacts).

Rule 4(k) — federal long-arm

  • 4(k)(1)(A) — federal courts borrow forum-state long-arm.
  • 4(k)(1)(B) — 100-mile bulge for Rule 14 / 19 joinder.
  • 4(k)(1)(C) — federal statutes authorizing nationwide service (antitrust Clayton § 12; ERISA § 1132(e)(2); securities § 27).
  • 4(k)(2) — federal long-arm for federal-law claims where defendant lacks contacts with any state but has contacts with US as whole; useful for foreign defendants in patent and admiralty.

Venue — 28 USC §§ 1391, 1404, 1406

§ 1391 — general venue

  • (b)(1) — judicial district where any defendant resides if all defendants residents of same state.
  • (b)(2) — judicial district where substantial part of events or omissions giving rise to claim occurred (or property situated).
  • (b)(3) — fallback — any district where any defendant is subject to personal jurisdiction.
  • (c) — residency: natural persons by domicile; entities by personal jurisdiction (general or specific) at time of action.
  • (d) — alien defendants may be sued in any district.

§ 1400 — special venue

  • (a) — copyright — district where defendant resides or may be found.
  • (b) — patent — district where defendant resides or where defendant has committed acts of infringement and has a regular and established place of business. TC Heartland LLC v Kraft Foods Group Brands, 581 U.S. 258 (2017) — “resides” for corporations = state of incorporation only. In re Cray, 871 F.3d 1355 (Fed. Cir. 2017) — “regular and established place of business” requires physical place + regularity + place “of the defendant.”

Transfer — § 1404 and § 1406

  • § 1404(a) — discretionary transfer for “convenience of parties and witnesses, in the interest of justice.” Atlantic Marine Construction v U.S. District Court for the Western District of Texas, 571 U.S. 49 (2013) — forum-selection clauses enforced through § 1404 with strong presumption.
  • § 1406(a) — transfer (or dismissal) for improper venue.
  • § 1407 — MDL transfer (see below).

Forum non conveniens

Common-law doctrine where alternative forum is abroad. Piper Aircraft v Reyno, 454 U.S. 235 (1981) — adequacy of alternative forum + public/private factors (administrative difficulty, local interest, court familiarity with law).

Pleading — Rules 7-12

Rule 8 — general pleading

8(a)(2) — “a short and plain statement of the claim showing that the pleader is entitled to relief.”

The transformation from notice pleading to plausibility pleading:

  • Conley v Gibson, 355 U.S. 41 (1957) — pleading sufficient unless “appears beyond doubt that the plaintiff can prove no set of facts in support.”
  • Bell Atlantic v Twombly, 550 U.S. 544 (2007) — antitrust parallel-conduct case; established “plausibility” standard; “no set of facts” language retired. Allegations must “raise a right to relief above the speculative level.”
  • Ashcroft v Iqbal, 556 U.S. 662 (2009) — extended Twombly to all civil cases; two-step: (i) identify conclusory allegations not entitled to assumption of truth; (ii) determine whether remaining factual allegations plausibly suggest entitlement to relief.

The Twombly/Iqbal standard remains intensely contested; lower courts apply with substantial variation. Empirical studies show 12(b)(6) grant rates up modestly post-Iqbal, with significant variance by claim type (employment discrimination + civil rights up; commercial mostly stable).

Rule 9(b) — fraud and special matters

“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” The “who, what, when, where, how” standard. Heightened pleading for fraud-based claims (securities, RICO, common-law fraud).

Rule 11 — sanctions

11(b) — certifications by signing: (1) not improper purpose; (2) warranted by existing law or non-frivolous argument for extension; (3) factual contentions have evidentiary support; (4) denials warranted on evidence.

11(c) — sanctions on motion (21-day safe-harbor) or court initiative. 1993 amendment substantially softened sanctions; 2025 PRO Act 119th Congress proposals to harden remained pending.

Rule 12(b) — defenses by motion

  • (1) — lack of subject matter jurisdiction.
  • (2) — lack of personal jurisdiction.
  • (3) — improper venue.
  • (4) — insufficient process.
  • (5) — insufficient service of process.
  • (6) — failure to state a claim upon which relief can be granted.
  • (7) — failure to join a party under Rule 19.

Waiver — 12(g) and 12(h) — defenses 2-5 waived if not consolidated in a Rule 12 motion or in the answer.

12(c) judgment on the pleadings + 12(d) conversion

12(c) — after pleadings closed. 12(d) — if matters outside pleadings, treated as Rule 56 summary judgment (with notice + opportunity to respond).

Rule 15 — amendments

  • 15(a) — amend once as matter of course within 21 days of service or 21 days after responsive pleading / Rule 12 motion.
  • 15(a)(2) — after, “leave shall be freely given when justice so requires” (Foman v Davis, 371 U.S. 178 (1962) — undue delay, bad faith, repeated failure to cure, undue prejudice, futility).
  • 15(c) — relation back: new claim relates back if “arose out of the conduct, transaction, or occurrence” of original; new party relates back if 4(m) period of service met + new party received notice + knew or should have known would have been named (Krupski v Costa Crociere, 560 U.S. 538 (2010)).

Joinder

Rule 17 — real party in interest

Rule 18 — joinder of claims

Permissive; party may join any claim against opposing party.

Rule 19 — required joinder

19(a) — required parties: complete relief impossible without; impair absentee’s ability to protect interest; risk inconsistent obligations. 19(b) — if joinder not feasible, four-factor analysis to dismiss “in equity and good conscience.”

Rule 20 — permissive joinder

Plaintiffs or defendants may be joined if: (a)(1) right to relief asserted jointly, severally, or arising out of same transaction/occurrence/series + (a)(2) common question of law or fact.

Rule 22 / Statutory interpleader

Stakeholder facing multiple competing claims. § 1335 statutory interpleader — $500 stake, minimal diversity, nationwide service.

Rule 24 — intervention

24(a) — intervention as of right — statutory + unconditional; or claim/interest, impairment, inadequate representation. 24(b) — permissive intervention.

Class Actions — Rule 23

23(a) prerequisites

  • (1) Numerosity — class so numerous that joinder impracticable. No bright line; courts typically find sufficient at 40+.
  • (2) Commonality — “questions of law or fact common to the class.” Wal-Mart Stores v Dukes, 564 U.S. 338 (2011) — Title VII sex-discrimination class against Wal-Mart; commonality requires common question whose “common answer drives resolution”; 1.5 million-member class decertified.
  • (3) Typicality — class rep’s claims typical of class.
  • (4) Adequacy — class rep + counsel will fairly and adequately protect class interests. Includes Hansberry v Lee, 311 U.S. 32 (1940) due-process foundation.

23(b) — type of class

  • (b)(1)(A) — risk of incompatible adjudications.
  • (b)(1)(B) — limited fund (asbestos, mass tort).
  • (b)(2) — injunctive/declaratory class — defendant has acted on grounds applicable to class generally.
  • (b)(3) — damages class — common questions predominate + class action superior. The workhorse class certification.

Predominance and Comcast

Comcast Corp v Behrend, 569 U.S. 27 (2013) — antitrust class; damages model must be capable of measurement on classwide basis consistent with the theory of liability. Significant predominance hurdle.

Tyson and statistical proof

Tyson Foods v Bouaphakeo, 577 U.S. 442 (2016) — FLSA donning-doffing case; representative evidence (Mt. Clemens-style average times) permitted in some circumstances.

Settlement classes

Amchem Products v Windsor, 521 U.S. 591 (1997); Ortiz v Fibreboard, 527 U.S. 815 (1999) — settlement-only classes still must satisfy 23(a) and (b); limited-fund (b)(1)(B) class strictly limited.

23(c)-23(h) procedures

  • 23(c)(1) — class certification “at an early practicable time.”
  • 23(c)(2) — notice required for (b)(3) — “best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.”
  • 23(e) — settlement, voluntary dismissal, compromise — court approval required; fairness, reasonableness, adequacy review (2018 amendment codified factors).
  • 23(f) — interlocutory appeal of class certification ruling — discretionary.
  • 23(g) — appointment of class counsel.
  • 23(h) — attorney’s fees; lodestar or percentage-of-fund.

CAFA — Class Action Fairness Act 2005

28 USC § 1332(d). Federal jurisdiction over class actions $5M+ aggregated + minimal diversity. Removability heightened. Local controversy and home-state exceptions return class to state court if 2/3 + class + principal injury in forum.

Notable class actions

  • Wal-Mart v Dukes — decertified (2011).
  • Comcast v Behrend — decertified (2013).
  • Halliburton v Erica P. John Fund, 573 U.S. 258 (2014); Goldman Sachs v Arkansas Teacher Retirement System, 594 U.S. 113 (2021) — securities fraud-on-the-market certification.
  • In re NFL Concussion Litigation — settlement class approved 2015.
  • In re Volkswagen Clean Diesel Litigation — $14.7B settlement 2016.
  • In re Equifax Data Security Breach Litigation — $1.4B settlement 2020.
  • In re Robinhood Order Flow Litigation — pending.

MDL — Multidistrict Litigation

28 USC § 1407 — Judicial Panel on Multidistrict Litigation (JPML) consolidates similar cases pending in multiple districts for pretrial proceedings, then remands for trial. As of 2025, MDLs constitute 50%+ of federal civil docket by case count.

  • Bellwether trials — selected representative cases tried first to inform settlement.
  • Case Management Orders — Lone Pine orders, Plaintiff Fact Sheets, Common Benefit Funds.
  • Recent major MDLs — NFL Concussion (MDL 2323), Opioids (MDL 2804 N.D. Ohio Judge Polster), 3M Combat Arms Earplugs (MDL 2885), Roundup / glyphosate (MDL 2741), Hair Relaxer (MDL 3060), Talcum Powder (MDL 2738), Zantac (MDL 2924), Camp Lejeune (MDL 2902 — atypical pure federal-statute MDL).
  • Sanofi v Mylan; In re Aqueous Film-Forming Foams (AFFF) PFAS MDL.
  • Looper v Cook Inc., 20 F.4th 387 (7th Cir 2021); In re Diet Drugs — MDL appellate review.

Discovery

Rule 26 — general

  • 26(a)(1) — initial disclosures: identification of fact witnesses; documents; damages computation; insurance policies.
  • 26(a)(2) — expert disclosures + report (for retained experts).
  • 26(a)(3) — pretrial disclosures.
  • 26(b)(1) — scope: “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” 2015 amendment relocated proportionality into 26(b)(1) (formerly buried in 26(b)(2)(C)).
  • 26(b)(2)(B) — limits on electronic discovery from sources “not reasonably accessible because of undue burden or cost.”
  • 26(b)(3) — work-product doctrine (codifying Hickman v Taylor, 329 U.S. 495 (1947)): documents prepared in anticipation of litigation by/for party or its representative; protected absent substantial need + undue hardship. Mental impressions/opinions of attorneys near-absolute protection.
  • 26(b)(4) — expert discovery; draft reports and most attorney-expert communications protected post-2010.
  • 26(b)(5) — privilege log requirement.
  • 26(c) — protective orders.
  • 26(f) — discovery conference (within 21 days of scheduling conference); discovery plan.

Rule 30 — depositions

  • 30(a)(2) — court permission for more than 10 depositions or to depose a person twice or before initial disclosures.
  • 30(b)(6) — corporate / entity deposition — corporation designates representative(s) on noticed topics. SEC v Morelli, 143 F.R.D. 42 (S.D.N.Y. 1992); Calzaturficio S.C.A.R.P.A. v Fabiano Shoe Co, 201 F.R.D. 33 (D. Mass. 2001). 2020 amendment to 30(b)(6) requires meet-and-confer on topics.
  • 30(d) — 7-hour / 1-day limit (extendable for cause).
  • 30(e) — review and signature; 30 days.

Rule 31 — depositions by written question (rare)

Rule 33 — interrogatories

  • 33(a)(1) — 25 per party including discrete subparts.
  • 33(b) — answer or object within 30 days, signed under oath.
  • 33(d) — option to produce business records.

Rule 34 — document requests

  • “Any designated documents or electronically stored information … including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations.”
  • 34(b)(2)(B) — must produce in form requested or reasonably usable form (ESI).
  • 34(b)(2)(C) — objection must state “whether any responsive materials are being withheld” (2015 amendment).

Rule 36 — requests for admission

  • 36(a) — within 30 days; failure to deny is deemed admission.
  • 36(b) — withdrawal/amendment of admission on showing.

Rule 37 — sanctions and Rule 37(e) — ESI spoliation

  • 37(a) — motion to compel; fee-shifting.
  • 37(b) — sanctions for violating discovery order.
  • 37(c)(1) — exclusion of evidence not disclosed under Rule 26(a) / (e).
  • 37(e) — 2015 amendment — sanctions for ESI lost when reasonable steps not taken to preserve:
    • “Failure to preserve” ESI;
    • “Should have been preserved in the anticipation or conduct of litigation”;
    • “Cannot be restored or replaced through additional discovery”;
    • Findings of “prejudice” + measures “no greater than necessary”;
    • For “intent to deprive” — presumption, instruction, or dismissal/default.

E-discovery and the Sedona Conference

The Sedona Principles (2003, updated 2007, 2017) — leading practical guidance. Federal Judicial Center’s e-discovery resources. Zubulake series (Judge Scheindlin, S.D.N.Y. 2003-2005) — landmark ESI preservation, cost-shifting, and sanctions framework. Pension Committee v Banc of America Securities, 685 F. Supp 2d 456 (S.D.N.Y. 2010) — preservation duties. Da Silva Moore v Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012) — predictive coding / TAR approved.

Predictive coding / Technology-Assisted Review (TAR) standard in large cases. Hyles v New York City, 2016 WL 4077114 (S.D.N.Y. 2016) — court will not compel use of TAR; producing party’s choice.

Privilege

  • Attorney-client privilege — communications between client and attorney for purpose of legal advice; held by client; can be waived. Upjohn Co v United States, 449 U.S. 383 (1981) — for corporations, privilege extends to all employees communicating with counsel on matters within scope of duties at corporation’s direction.
  • Work product doctrine — Hickman v Taylor; Rule 26(b)(3).
  • Common-interest doctrine — privileged communications shared with parties of common legal interest; protection maintained.
  • Joint-defense agreements — common in multi-defendant cases.
  • Crime-fraud exception — United States v Zolin, 491 U.S. 554 (1989).
  • FRE 502 — selective-waiver and inadvertent-disclosure protection.

Provisional Remedies — Rule 64-65

Rule 65 — preliminary injunctions and TROs

  • TRO — 14-day max + extension; without notice in limited circumstances.
  • Preliminary injunction — Winter v Natural Resources Defense Council, 555 U.S. 7 (2008): (1) likely to succeed on merits; (2) likely irreparable harm; (3) balance of equities; (4) public interest.
  • Bond — 65(c) — court may require security for damages from wrongful injunction.

eBay v MercExchange — equitable remedies post-eBay

eBay Inc v MercExchange LLC, 547 U.S. 388 (2006) — rejected automatic injunction for patent infringement; four-factor equity test applies. Transformed patent + injunction landscape.

Summary Judgment — Rule 56

The “putative trial on paper.”

Standard

56(a) — “no genuine dispute as to any material fact” + “the movant is entitled to judgment as a matter of law.”

The 1986 trilogy:

  • Celotex Corp v Catrett, 477 U.S. 317 (1986) — moving party need not negate opponent’s claim; can point to absence of evidence in record on essential element on which opponent bears burden of proof.
  • Anderson v Liberty Lobby, 477 U.S. 242 (1986) — apply substantive evidentiary standard (clear and convincing for defamation actual malice).
  • Matsushita Electric Industrial v Zenith Radio, 475 U.S. 574 (1986) — implausibility theory; when claim implausible, plaintiff must come forward with more persuasive evidence.

Procedure

  • 56(b) — motion at any time until 30 days after close of discovery.
  • 56(c)(1) — must support with citations to record materials.
  • 56(d) — discovery deferral when nonmovant cannot present essential facts.
  • 56(f) — partial summary judgment.

Cross-references

Inferences in favor of non-movant; credibility determinations not at summary judgment. Tolan v Cotton, 572 U.S. 650 (2014) — qualified immunity application reaffirmed standard.

Trial

Rule 38 — jury demand

7th Amendment preserves right to civil jury in suits at common law involving > $20. Demand within 14 days of last pleading directed to issue.

Rule 39 — by jury / by court

Rule 41 — dismissal

  • 41(a)(1) — voluntary dismissal once by notice before opposing party serves answer or summary judgment motion; or stipulation.
  • 41(a)(2) — by court order; “two dismissal” rule treats second voluntary as adjudication on merits.
  • 41(b) — involuntary dismissal; adjudication on merits unless court otherwise specifies.

Rule 50 — judgment as a matter of law

  • 50(a) — JMOL at trial after non-movant has been heard (formerly “directed verdict”).
  • 50(b) — renewed JMOL after trial within 28 days (formerly “JNOV”). Must have moved under 50(a).

Rule 51 — jury instructions

Rule 52 — bench trial findings of fact

52(a)(6) — findings reviewed only for clear error.

Judgments

Rule 54 — judgment

54(b) — partial final judgment on fewer than all claims/parties requires express determination “no just reason for delay” + entry of judgment.

Rule 55 — default

55(a) — entry of default by clerk; 55(b) — default judgment (clerk in limited circumstances; court in others).

Rule 56 — see above

Rule 59 — new trial / amendment

59(a) — new trial grounds: against weight of evidence; excessive/inadequate damages; legal errors at trial. 28-day deadline. 59(e) — motion to alter or amend judgment; 28 days.

Rule 60 — relief from judgment

  • 60(b)(1) — mistake, inadvertence, surprise, excusable neglect (within 1 year).
  • 60(b)(2) — newly discovered evidence (within 1 year).
  • 60(b)(3) — fraud, misrepresentation, misconduct (within 1 year).
  • 60(b)(4) — void judgment.
  • 60(b)(5) — satisfied, released, discharged.
  • 60(b)(6) — any other reason justifying relief.
  • 60(d) — independent action for fraud on the court.

Appeals

28 USC § 1291 — final judgment rule

Final decisions appealable; piecemeal review disfavored.

Collateral order doctrine

Cohen v Beneficial Industrial Loan Corp, 337 U.S. 541 (1949) — small class of orders: (1) conclusively determine disputed question; (2) resolve important issue separate from merits; (3) effectively unreviewable on appeal from final judgment.

Modern collateral-order doctrine application narrowing — Mohawk Industries v Carpenter, 558 U.S. 100 (2009) — attorney-client privilege rulings not collateral. Will v Hallock, 546 U.S. 345 (2006).

28 USC § 1292 — interlocutory appeals

  • (a)(1) — injunctions.
  • (b) — interlocutory certification: district judge certifies “controlling question of law” + “substantial ground for difference of opinion” + immediate appeal “may materially advance ultimate termination”; court of appeals discretion.

Rule 23(f) — class certification appeals

Discretionary appellate review without § 1292(b) certification.

Rule 54(b) — partial final judgments

(See above.)

Mandamus

28 USC § 1651 (All Writs Act). Cheney v U.S. District Court, 542 U.S. 367 (2004) — extraordinary remedy.

Standards of review

  • De novo — questions of law; mixed questions where law predominates.
  • Clear error — bench-trial findings of fact (Rule 52(a)(6)).
  • Abuse of discretion — discretionary rulings (evidentiary rulings, sanctions, class certification, discovery management).
  • Substantial evidence — agency findings (APA § 706).
  • Plain error — unpreserved objections (Rule 51).

Federal Circuit Rules

The Federal Circuit (28 USC § 1295) has exclusive appellate jurisdiction over patent cases (whether substantive law was patent law as the cause of action) under Holmes Group v Vornado, 535 U.S. 826 (2002), as modified by Leahy-Smith America Invents Act 2011 + Gunn v Minton (2013).

Preclusion

Claim preclusion (res judicata)

Same claim between same parties — barred. Restatement (Second) of Judgments § 24 — transactional approach. Federated Department Stores v Moitie, 452 U.S. 394 (1981).

Elements:

  • Final judgment on the merits;
  • Same parties or those in privity;
  • Same claim (transactional test).

Issue preclusion (collateral estoppel)

Issue actually litigated and determined; necessary to prior judgment. Parklane Hosiery Co v Shore, 439 U.S. 322 (1979) — offensive non-mutual issue preclusion permitted; mutuality requirement abandoned (Blonder-Tongue Laboratories v University of Illinois Foundation, 402 U.S. 313 (1971), for defensive use).

Government may not be bound non-mutually — United States v Mendoza, 464 U.S. 154 (1984).

Full Faith and Credit

28 USC § 1738 — state judgments entitled to same effect in federal court. Marrese v American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985).

Section 1983 and Bivens

42 USC § 1983

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.

Key doctrines:

  • Monroe v Pape, 365 U.S. 167 (1961) — § 1983 reaches officials acting under color of state law even if conduct violates state law.
  • Monell v Department of Social Services, 436 U.S. 658 (1978) — municipalities are “persons” under § 1983; liability for official policy or custom (not respondeat superior).
  • Qualified immunity — Harlow v Fitzgerald, 457 U.S. 800 (1982); Pearson v Callahan, 555 U.S. 223 (2009) — two-step (clearly established right + constitutional violation), courts may decide either first. Mullenix v Luna, 577 U.S. 7 (2015); Taylor v Riojas, 592 U.S. ___ (2020) — minor crack in clearly-established requirement.
  • Absolute immunity — judges (Pierson v Ray), prosecutors (Imbler v Pachtman, 424 U.S. 409 (1976)), legislators (Bogan v Scott-Harris, 523 U.S. 44 (1998)).

Bivens

Bivens v Six Unknown Named Agents, 403 U.S. 388 (1971) — implied damages remedy against federal officials for Fourth Amendment violations. Extended in Davis v Passman, 442 U.S. 228 (1979) (Fifth Amendment); Carlson v Green, 446 U.S. 14 (1980) (Eighth Amendment).

Severely contracted in modern era — Ziglar v Abbasi, 582 U.S. 120 (2017); Hernandez v Mesa, 589 U.S. 93 (2020); Egbert v Boule, 596 U.S. 482 (2022) — refused to extend Bivens to new contexts; “special factors” counseling hesitation almost always present.

ADR — Federal Arbitration Act

9 USC §§ 1-16. Allied-Bruce Terminix v Dobson, 513 U.S. 265 (1995); AT&T Mobility v Concepcion, 563 U.S. 333 (2011); Epic Systems v Lewis, 584 U.S. 497 (2018) — pro-arbitration policy, class-action waivers enforceable.

New Prime v Oliveira, 586 U.S. 105 (2019) — § 1 exemption for transportation workers includes independent contractors. Southwest Airlines v Saxon, 596 U.S. 450 (2022) — ramp supervisors transportation workers.

Coinbase v Bielski, 599 U.S. 736 (2023) — automatic stay of district-court proceedings when arbitrability appealed.

Smith v Spizzirri, 601 U.S. 472 (2024) — district court must stay (not dismiss) when claims subject to arbitration and party requests stay.

  • MDL governance and bellwether selection — debate over “Plaintiff Fact Sheets” and “Lone Pine” orders; MDL Subcommittee considering Rule 16.1 for MDL practice (proposed amendment in advisory).
  • Third-party litigation funding — disclosure controversies; ABA Model Rule discussions.
  • ESI proportionality — continued litigation over hyperlinked / cloud documents; Slack and similar messaging discovery.
  • AI in litigation — Rule 11 sanctions cases on hallucinated citations (Mata v Avianca, 2023); proposals for AI-disclosure rules.
  • TPM and forum shopping — Texas-Wyoming-North Dakota single-judge division flooding (Mifepristone litigation, 2023-25); CAFC redistribution; HSPCM amendments under consideration.
  • Personal-jurisdiction revival — Mallory (2023) revived consent-by-registration; potential reshaping of multi-jurisdictional litigation.
  • Article III standing tightening — TransUnion v Ramirez, 594 U.S. 413 (2021) — concrete-injury requirement; statutory damages alone insufficient.

Practical Practice Notes

  • Drafting the complaint — Iqbal-compliant factual specificity; allege every element with factual support; consider Rule 9(b) heightened for fraud.
  • Initial Rule 26(f) conference — set ESI custodian list early; lock proportionality scope; ESI search-term + TAR understanding.
  • Discovery plan — production format (native vs TIFF + load file); metadata fields; privilege-log scope (categorical privilege logs for large reviews per 26(b)(5)(A) practice).
  • Privilege review at scale — careful curation; clawback (FRE 502(d) court orders for non-waiver).
  • Bellwether and case-management orders in MDL — fact-sheet timeline; deficiency-cure process; trial schedule.
  • Summary judgment strategy — sequence motions; preserve Rule 50 motions during trial; consider Daubert motions in conjunction.
  • Trial graphics + jury instructions — early focus; pattern jury instructions.
  • Appeal preservation — exhaustive Rule 50, 51, 59 motions; objections during trial.

Adjacent

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