Federal Court Civil Practice Conference 2018

1. Federal Court Civil Practice Conference 2018

2. Bringing Suit in Federal District Court VS. Superior Court

3. State v. Federal: Juries

4. State v. Federal: Case Management

5. State v. Federal: Timing

6. State v. Federal: Filing

7. Initiating the Federal Court Action

8. Initiating the Federal Court Action Filing Suit Removal Preliminary Injunctions & TROs

9. Filing Suit: Fed. R. Civ. P. 8(a) • A pleading that states a claim for relief must contain: • a short and plain statement of the grounds for the court's jurisdiction; • a short and plain statement of the claim showing that the pleader is entitled to relief; and • a demand for the relief sought. 1 2 3

10. Filing Suit: Fed. R. Civ. P. 8(a)

11. Filing Suit: Stating a Claim: • To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). • “[F]actual allegations must be enough to raise a right to relief above the speculative level . . .on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555. • Massachusetts has adopted the Twombly standard. Iannacchino v. Ford Motor Co., 888 N.E.2d 879 (Mass. 2008).

12. Removal: 28 U.S.C. 1446 1 • To remove a case to federal court, a defendant must file a notice of removal with the federal court for the district in which the action is pending. • The notice of removal must contain a short and plain statement of the grounds for removal. • A notice of removal must be filed within 30 days after the defendant receives the initial pleading. • Promptly after filing the notice of removal, defendant must: • give written notice to all adverse parties, and • file a copy of the notice with the clerk of the state courtin which the action was pending. 2 3

13. Removal: 28 U.S.C. 1446 – Wrinkles and Exceptions • (b)(2)(A) "When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action." • (b)(2)(C) "If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal. . . .” • (b)(3) "[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."

14. Preliminary Injunctions & TROs (Fed. R. Civ. P. 65) • Preliminary Injunction – Rule 65(a)(1): “The court may issue a preliminary injunction only on notice to the adverse party." • Temporary Restraining Order – Rule 65(b)(1): "Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required."

15. Preliminary Injunctions & TROs • A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winters v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). • A plaintiff seeking a preliminary injunction must establish: • that she is likely to succeed on the merits, • that she is likely to suffer irreparable harm absent preliminary relief, • that the balance of equities tips in her favor, and • that an injunction is in the public interest. 1 2 3 4

16. Launching Discovery

17. Launching Discovery Initial Disclosures Scheduling Conference Scheduling Orders

18. Initial Disclosures: Fed. R. Civ. P. 26(a)(1)(A) • Parties must provide (without first receiving a discovery request): • the names, addresses, and telephone numbers of persons likely to have relevant, discoverable information, along with the subject of that information; • a copy or description of all relevant documents, data compilations, and tangible items in the party's possession, custody, or control; • a damages computation; and • any relevant insurance agreements. 1 2 3 4

19. Initial Disclosures: Exemptions • Examples of actions exempt from initial disclosures: • An action for review on an administrative record; • A proceeding ancillary to a proceeding in another court; • An action to enforce an arbitration award. SeeFed. R. Civ. P. 26(a)(1)(B)

20. Initial Disclosures: Timing • A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference. See Fed. R. Civ. P. 26(a)(1)(C). • A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined. See Fed. R. Civ. P. 26(a)(1)(D). • Parties may stipulate or Court may order different timing.

21. Initial Disclosures: Unacceptable Excuses • A party is not excused from making its disclosures because: • it has not fully investigated the case; • it challenges the sufficiency of another party’s disclosures; or • another party has not made its disclosures. See Fed. R. Civ. P. 26(a)(1)(E)

22. Initial Disclosures: State Rules • Some states do not have rules requiring initial disclosures (e.g., Massachusetts). • Other states do have similar rules, but it may be called something else – like “automatic discovery” (e.g., New Hampshire). • Always check your state’s rules.

23. Initial Disclosures: Discovery and Supplementing • After the initial disclosures have been sent, the main discovery process begins (depositions, interrogatories, request for admissions and request for production of documents). • Parties must supplement or correct their initial disclosures whenever they discover new information that renders their initial disclosure incomplete or incorrect. See Fed. R. Civ. P. 26(e)(1)(A).

24. Scheduling Conference • Shortly after the complaint is filed, you will need to prepare for a set of conferences. • Rules 16 and 26(f) govern these conferences (but set forth their timing in a slightly confusing way). • Always consult your court’s rules or your judge's standing order for an understanding of the sequencing of these conferences.

25. Scheduling Conference: Fed. R. Civ. P. 26(f) • The parties must confer as soon as practicable, and at least 21 days prior to the Rule 16(b) scheduling conference or filing of a scheduling order. • At this meeting, referred to as a “Rule 26(f) conference,” counsel must, among other tasks: • confer to “consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case”; • “make or arrange for the disclosures required by Rule 26(a)(1)”; • “discuss any issues about preserving discoverable information"; • “develop a proposed discovery plan.”

26. Scheduling Conference: Fed. R. Civ. P. 26(f) • At the Rule 26(f) conference, the parties must also develop a discovery plan that addresses the subjects listed in Federal Rule 26(f)(3), including: • Discovery of electronically stored information. • Discovery and motion deadlines. • Limits on certain types of discovery. • A joint written report of the conference must be submitted to the court within 14 days of the conference.

27. Scheduling Conference: Fed. R. Civ. P. 16(b) • Unless good cause for delay is found, scheduling order must be issued: • within 90 days after any defendant has been served; OR • or 60 days after any defendant has appeared, whichever is earlier. • Court must have received the parties’ Rule 26(f) report or consulted with parties at a scheduling conference.

28. Scheduling Orders • Scheduling order must limit the time to join other parties, amend pleadings, complete discovery, and file motions. • Scheduling order may: • modify the timing of initial and supplementary disclosures; • modify the extent of discovery; • provide for the discovery of electronically stored information; • include agreements on privileged or protected material; • require a conference with the judge prior to filing a discovery motion; and • set dates for pretrial conferences.

29. Conducting Discovery

30. Conducting Discovery: Scope • Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1)

31. Discovery Limitations & Response Times

32. Rule 34 Responses • 34(b)(2)(B) response must either state that inspection and related activities will be permitted as requested or state objections with specificity. • 34(b)(2)(C) objection must state whether any responsive materials are being withheld on basis of that objection. • 34(b)(2)(E) documents/ESI must be produced as they are kept in usual course of business or must be organized and labeled to correspond to the categories in the request.

33. Local Rule 35.1 — Personal Injury Cases • Within 14 days after issue is joined by responsive pleading (or 21 days after removal), claimant shall serve defendant: • (1) itemization of medical expenses incurred before date of service of pleading containing the claim. • (2) statement that either (a) identifies convenient location and date (within 14 days) to inspect and copy non-privileged medical records; or (b) identifies all health-care providers used by the plaintiff together with executed releases directed to each provider.

34. Motion Practice — Local Rule 7.1 • 7.1(b)(1): Motion is filed (electronically – see Local Rule 5.4). • 7.1(a)(2): Must contain certification that counsel have conferred and attempted in good faith to resolve or narrow the issue. • 7.1.(b)(2): Oppositions due 14 days after service; 21 days for summary judgment motions. • 7.1(b)(4): Memoranda in excess of 20 double-spaced pages require leave. • 7.1(d): Requests for hearing made by a separate paragraph set off with centered caption “REQUEST FOR ORAL ARGUMENT”.

35. Motion Practice • Local Rule 37.1(a): For discovery disputes there is an obligation to confer; non-requesting party must respond to request to confer within 7 days. • Local Rule 37.1(b): If the discovery dispute is not resolved during the conferral period, the requesting party may file a motion with the court. This motion must contain certificate of compliance. • Federal Rule 37(a)(5): If motion is granted or discovery is provided after motion is filed, Court “must” award costs (unless no conference, substantial justification or other circumstances make award unjust).

36. Expert Disclosures Fed. R. Civ. P. 26(a)(2) • Written report prepared and signed by witness containing: • the complete statement of all opinions the witness will express and the basis and reasons for them; • the facts or data considered by the witness in forming them; • any exhibits that will be used to summarize or support them; • the witness’ qualifications, including a list of all publications authored in the previous 10 years; • a list of all cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; • a statement of the compensation to be paid

37. DISPOSITIVE MOTIONS

38. Dispositive Motions Fed. R. Civ. P. 12 (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following 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; and (7) failure to join a party under Rule 19. Waivable

39. Dispositive Motions • Fed. R. Civ. P. 12 • (b)(6) failure to state a claim upon which relief can be granted. • In assessing the sufficiency of factual allegations, a court takes a two-step approach. First, it will separate the allegations of the complaint into factual allegations and legal conclusions. Then it will presume the veracity of the factual allegations and will analyze them to determine whether the complaint states a plausible claim upon which relief can be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 679-80 (2009). • Dismissal is appropriate if the complaint fails to set forth “factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Lemelson v. U.S. Bank Nat’l Ass’n, 721 F.3d 18, 22 (1st Cir. 2013).

40. Dispositive Motions

41. Dispositive Motions Fed. R. Civ. P. 12(c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings. Fed. R. Civ. P. 56. Motion for Summary Judgment. A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. Fed. R. Civ. P. 23. Opposition To Motion for Class Certification.

42. Summary Judgment: Fed. R. Civ. P. 56(a) • A party may move for summary judgment at any time prior to 30 days after the close of discovery. • The motion must identify each claim or defense — or the part of each claim or defense — on which summary judgment is sought. • The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. • The court should state on the record the reasons for granting or denying the motion.

43. Summary Judgment: Standard • Substantive law governs which facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). • When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. SeeMatsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

44. Summary Judgment: Procedures • Supporting Factual Positions (2) Objection That a Fact Is Not Supported by Admissible Evidence (3) Materials Not Cited (4) Affidavits or Declarations See Fed. R. Civ. P. 56(c)

45. Summary Judgment: Burden • If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P. 56(c)(1)(A). • If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove. See Fed. R. Civ. P. 56(c)(1)(B).

46. Summary Judgment Is there a genuine dispute as to a material fact? See Fed. R. Civ. P. 56(f). No Yes Trial Judgment

47. Trial Judge Panel