Federal Rule of Civil Procedure 4(d) request for waiver of service of summons

A Federal Rule of Civil Procedure 4(d) request for waiver of service of summons is the topic of this blog post.  Rule 4(d) of the Federal Rules of Civil Procedure imposes a duty on any defendant who is an individual that is not a minor or incompetent, a corporation or association to avoid the unnecessary expenses of serving the summons.  

This blog post will discuss both the advantages and the disadvantages of serving a request for waiver of service of summons under Rule 4(d) which is also known as a notice of lawsuit and request for waiver of service of a summons and can be used in civil litigation in United States District Court.

A request under Rule 4(d) has some to both the plaintiff and the defendant being served with the use of a notice of lawsuit and request for waiver of service of a summons in that the plaintiff avoids the time and expense of issuing and serving the summons and complaint and the defendant is allowed 60 days after the request for a waiver is sent to respond to the summons and complaint if they are located within the United States of America. This is substantially longer than the 21 days allowed under Federal Rule of Civil Procedure 12(a)(1)(A)(i).  And the defendant is still entitled to raise all defenses or objections to the lawsuit, the court’s jurisdiction, and the venue of the action.

However there are disadvantages to the use of a Rule 4(d) notice which are listed near the end of this blog post.

Rule 4(d) states that,

“(d) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed;

(C) be accompanied by a copy of the complaint, 2 copies of a waiver form, and a prepaid means for returning the form;

(D) inform the defendant, using text prescribed in Form 5, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside any judicial district of the United States—to return the waiver; and

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.”

The main disadvantage to the plaintiff with the use of a notice of lawsuit and request for waiver of service of a summons is that the plaintiff assumes the risk that the defendant may not actually receive the notice and request for waiver or that they will not comply in signing and returning the waiver waiver.

The main disadvantage to the defendant being served is that they waive any objections that no summons was served, or that the service was defective in any way.

Attorneys or parties who would like to view or download a 5 page sample notice of lawsuit and request for waiver of service containing brief instructions as well as a sample waiver of the service of a summons containing all required statutory language created by the author can usse the link shown below.

Sample Rule4(d) Request for Waiver of Service of Summons

 

Attorneys or parties who would like to view portions of over 300 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

View over 300 sample legal documents for sale

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/products_main.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Rule 60(d)(3) motion to vacate judgment for fraud on the court

http://www.legaldocspro.com/blog/vacating-a-judgment-for-fraud-on-the-court-in-united-states-district-court/

Summary judgment motion under Rule 56 by plaintiff in United States District Court

A summary judgment motion under Rule 56 by a plaintiff in United States District Court is the topic of this blog post.   Rule 56 refers to Federal Rule of Civil Procedure 56 which states in pertinent part that summary judgment is proper where “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.” See Fed. R. Civ. P 56(a).

A motion for summary judgment under Rule 56 must be filed no later than 30 days after the close of all discovery in the case unless a different time is specified by a local rule or specific order of the Court. 

In most cases the moving party should give at least 31 calendar days notice of the motion unless a different time is specified by a local rule or specific order of the Judge hearing the case. The moving party should carefully review the local rules for their Court as well as standing orders for the Judge as many districts and even individual Judges have very specific rules and procedures that must be followed.

For instance in the Central District of California local rule 7-3 requires that the moving party must meet and confer with the opposing party in an attempt to resolve any issues before any motion is filed and local rule 56-1 has very specific requirements for the documents that must be included with the motion including a requirement that a Statement of Uncontroverted Facts and Conclusions of Law and proposed Judgment granting summary judgment must be served and filed with the motion.

Filing a Rule 56 summary judgment motion should be considered by any plaintiff who can show that their complaint clearly alleges sufficient facts to establish each and every required element of all causes of action contained in the complaint and that the answer filed by a defendant consists of nothing but generic “boilerplate” affirmative defenses which fail to state any facts sufficient to constitute affirmative defenses and that the discovery responses provided by defendant are also deficient and lacking in any specific facts or evidence.

The United States Supreme Court has stated that the moving party on a Rule 56 motion for summary judgment has the burden of demonstrating that there is no genuine issue of fact in dispute that requires a trial.  Once the moving party has met their burden the party opposing the motion cannot just rely on any denials in their pleadings but instead they must set forth specific facts showing a genuine issue of fact in dispute that requires trial.

The Ninth Circuit Court of Appeals has stated that the opposing party cannot defeat a motion for summary judgment simply by relying on conclusory allegations that are not supported by any evidence.  And they have also stated that an issue of fact alone is not sufficient reason to deny a motion for summary judgment unless there is a genuine issue of material fact that is capable of directly affecting the outcome of the case, and that the evidence must be substantial and not merely speculative.

Attorneys or parties who would like to view a portion of a 16 page sample motion for summary judgment in United States District Court containing brief instructions, a table of contents and table of authorities as well as a memorandum of points and authorities with citations to case law and statutory authority, statement of uncontroverted facts and conclusions of law, sample declaration, proposed judgment granting summary judgment and proof of service by mail sold by the author can use the link shown below.

Sample motion for summary judgment by plaintiff in United States District Court

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
 

 

Oppose motion to vacate judgment under Rule 60(b)(1) in United States District Court

Oppose a motion to vacate judgment under Rule 60(b)(1) in United States District Court is the topic of this blog post.  the opposition to the motion should be served and filed at least seven (7) calendar days before the hearing unless a Local Rule or order of the Court states otherwise pursuant to Federal Rule of Civil Procedure 6(c)(2).

Parties served with a motion to vacate under Rule 60(b)(1) (Rule 60) should carefully review the motion and all supporting documents to determine what grounds exist for an opposition. 

Common grounds for opposition to a motion to vacate under Rule 60(b)(1) are:

The motion is untimely in that it is brought within a reasonable time as required by Rule 60 which part that,

“ (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

The moving party unreasonably delayed in filing the motion.

Culpable conduct by the moving party resulted in the judgment.

No meritorious defenses to the judgment or lawsuit are presented.

The opposing party would be prejudiced if the judgment were set aside.

Numerous decisions of the Circuit Courts of Appeal including but not limited to, the Ninth Circuit Court of Appeals have stated that the moving party must show good cause for the default or judgment, diligence in seeking relief and a meritorious defense otherwise the Court has the discretion to deny the motion.

In a recent decision the Ninth Circuit Court of Appeal stated that Rule 60 does not provide relief for cases of ignorance, carelessness or inexcusable neglect.   In another case the Ninth Circuit stated that even attorney negligence that would be considered malpractice does not usually warrant the granting of relief under Rule 60(b)(1), only conduct that is considered attorney misconduct.

Another Circuit Court of Appeal also stated that the ignorance or carelessness of an attorney does not warrant relief under Rule 60 and neither do deliberate litigation strategy and choices regarding evidence.

Attorneys or parties who would like to view a portion of a 10 page sample opposition to motion to vacate judgment under Rule 60(b)(1) containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below.

Sample opposition to Rule 60(b)(1) motion to vacate judgment

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly newsletter for more information.

Follow the author on Twitter at: Twitter page for LegalDocsPro

You can view sample legal document packages for sale by visiting: Sample legal document packages for sale

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

How to oppose a motion to vacate judgment under Rule 60(b)(2) in United States District Court

How to oppose a motion to vacate judgment under Rule 60(b)(2) in United States District Court on the grounds of newly discovered evidence is the topic of this blog post.  The opposition to the motion should be served and filed at least seven (7) calendar days before the hearing unless a Local Rule or order of the Court states otherwise pursuant to Federal Rule of Civil Procedure 6(c)(2).

Parties served with a motion to vacate under Rule 60(b)(2) (“Rule 60”) should review the motion and all supporting documents very closely to determine what grounds exist for an opposition. 

Common grounds for opposition to a motion to vacate under Rule 60(b)(2) are:

The motion is untimely in that it is brought more than one year after the entry of judgment or it is not brought within a reasonable time as required by Rule 60 which part that,

“ (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

The moving party unreasonably delayed in filing the motion.

The newly discovered evidence was known or could have been discovered by the moving party before the trial.

The newly discovered evidence is merely cumulative, impeaching or not material.

The newly discovered evidence would not likely produce a different result if the judgment were set aside.

Numerous decisions of the Circuit Courts of Appeal including the Ninth Circuit have stated that the moving party must show that the newly discovered evidence was discovered after the trial, that they exercised diligence to discover the evidence, the evidence is not just cumulative or impeaching evidence, the evidence is material and that the evidence would most likely produce a different result if the judgment were set aside.

Several recent decisions of the Circuit Courts of Appeal have stated that impeachment evidence that is newly discovered does not support a motion to vacate under Rule 60 in most cases.

And several Circuit Courts of Appeal have also stated that a Rule 60(b)(2) motion for relief from judgment is subject to the same standard as a motion under Rule 59 for a new trial on the grounds of newly discovered evidence

Attorneys or parties who would like to view a portion of an 11 page sample opposition to motion to vacate judgment under Rule 60(b)(2) containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below.

Sample opposition to Rule 60(b)(2) motion to vacate judgment

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly newsletter for more information.

Follow the author on Twitter at: Twitter page for LegalDocsPro

You can view sample legal document packages for sale by visiting: Sample legal document packages for sale

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

Settlement offer under Federal Rule of Evidence 408 in United States District Court

A settlement offer under Federal Rule of Evidence 408 in United States District Court is the topic of this blog post.  Rule 408 generally forbids evidence of any settlement offers or any conducts or statements made during settlement negotiations.

Rule 408 was first introduced in 1974. It replaced the original rules of evidence which represented a huge stumbling block to any meaningful settlement negotiations as under the common law any statements made during such settlement negotiations were admissible and therefore fair game for use at trial or in summary judgment motions.  Not surprisingly this threat had a very chilling effect that prevented most if not all litigants from engaging in any discussions regarding a possible settlement.  Rule 408 changed the common law rule as it forbids the admission into evidence of statements made during settlement negotiations “when offered to prove liability for, invalidity of or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction.”

Rule 408 was adopted to facilitate the resolution of disputes without the expense and uncertainty of protracted litigation. Many State courts around the nation have adopted their own version of Rule 408, either through formal rules or through case law. For the State of California has adopted Evidence Code sections 1152 and 1154 which serve a similar purpose.

Rule 408 states that,

“(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”

Rule 408 does have some exceptions. For example any previous settlement negotiations between a plaintiff and another party could be introduced by a defendant to establish for statute of limitations purposes the date that plaintiff understood the cause of his or her injuries.

Attorneys or parties who would like to view a sample settlement offer letter under Federal Rule of Evidence 408 created by the author and available for free download can use the link shown below.

Sample settlement offer under Federal Rule of Evidence 408

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. 

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly newsletter for more information.

Follow the author on Twitter at: Twitter page for LegalDocsPro

You can view sample legal document packages for sale by visiting: Sample legal document packages for sale

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 
 

How to respond to requests for production of documents in United States District Court

How to respond to requests for production of documents in United States District Court is the topic of this blog post.  Requests for production of documents in United States District Court are governed by Rule 34 of the Federal Rules of Civil Procedure (Rule 34) and in United States Bankruptcy Court by Rule 7034 of the Federal Rules of Bankruptcy Procedure.

The responding party must serve the responses to the requests for production of documents on the propounding party and all other parties to the action that have appeared within 30 days after service unless otherwise stipulated or ordered by the court.  This time period is extended to 33 days if the requests were served by mail.

The responses must comply with the applicable provisions of Rule 34.  Each request must be responded to separately and under oath and the attorney must sign any response that contains any objections.

The responding party should keep in mind that the Federal courts in particular are notoriously intolerant of generic or “boilerplate” objections that are interposed without any supporting facts.  Examples include “overbroad and oppressive” where no details are provided as to why the request is overbroad and oppressive.  The use of boilerplate objections with no supporting facts may result in the imposition of significant monetary sanctions as well as waiver of the objections.

Responses to requests for producing electronically stored information should comply with the following provisions of Rule 34:

Rule 34(B) states that, “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons.”

Rule 34(C) states that, “An objection to part of a request must specify the part and permit inspection of the rest.”

Rule 34(D) states that, “The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.”  

Rule 34(E) states that, “Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.”

Attorneys or parties who would like to view a portion of a sample 13 page responses to requests for production of documents in United States District Court under Rule 34 containing brief instructions for responding, a generic verification under oath with notary acknowledgment for use in most states, a specific verification for California only, and proof of service by mail sold by the author can use the link shown below.

http://www.scribd.com/doc/232258635/Sample-Responses-to-Request-for-Production-of-Documents-Under-Rule-34

 

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by visiting: http://www.legaldocspro.com

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Offer of judgment in United States District Court

http://www.legaldocspro.com/blog/offer-of-judgment-under-federal-rule-of-civil-procedure-68/

Motion to vacate judgment in United States District Court for fraud, misrepresentation, or other misconduct of an adverse party

A motion to vacate a judgment in United States District Court for fraud, misrepresentation, or other misconduct of an adverse party is the topic of this blog post.  This motion is filed pursuant to Federal Rule of Civil Procedure Rule 60(b)(3) (“Rule 60”).

Rule 60 states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:  (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.”

Note that the motion must be filed no later than one year after the entry of the judgment as Rule 60 states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

A motion to vacate a judgment on the grounds of fraud, misrepresentation, or other misconduct of an adverse party is the appropriate motion for situations where the moving party can make a very strong showing that the fraud or other misconduct resulted in a verdict against them, and that the conduct prevented them from fully and fairly presenting their claim or defense.  

However the “moving party must prove by clear and convincing evidence that the verdict was obtained through fraud, misrepresentation, or other misconduct and the conduct complained of prevented the losing party from fully and fairly presenting the defense." Casey v. Albertson's, Inc., 362 F.3d 1254, 1260 (9th Cir. 2004) (citing De Saracho v. Custom Food Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000).

Anyone who becomes aware of fraud, misrepresentation or other misconduct by an adverse party that resulted in a verdict against them and prevented them from fairly presenting their case needs to act quickly if they want to increase the chances of having their motion granted as the law is settled in the Ninth Circuit and elsewhere that a district court has great discretion in deciding whether to grant a motion under Rule 60. It is subject to review only for abuse of discretion.

However the Ninth Circuit Court of Appeal has stated that this rule, like all the Federal Rules of Civil Procedure, “is to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (internal citations omitted.)

Attorneys or parties in civil litigation in United States District Court who wish to view a portion of an 11 page sample motion to vacate a default judgment under Rule 60(b)(3) containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can use the link shown below.

Sample motion to vacate judgment under Rule 60(b)(3)

 

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 245 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Rule 60(b)(1) motions to vacate on the grounds of mistake, inadvertence, surprise or excusable neglect in the Ninth Circuit

Rule 60(b)(1) motions to vacate a default judgment on the grounds of mistake, inadvertence, surprise or excusable neglect are the topic of this blog post.    The author mainly works on cases within the jurisdiction of the Ninth Circuit Court of Appeals so the majority of the cases cited herein are from that circuit. Readers located in other circuits should research cases from their particular circuit.

Rule 60(b)(1) of the Federal Rules of Civil Procedure (“Rule 60”)  states in pertinent part that “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect.”  And Rule 60 also states that “(c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”

As with a motion to vacate a default judgment in California, it should be noted that Rule 60 does state that the motion must be made within a reasonable time.  Anyone who finds out that a default judgment has been entered against them needs to act quickly if they want to increase the chances of having their motion granted as the law is settled in the Ninth Circuit and elsewhere that a district court has great discretion in deciding whether to grant a motion under Rule 60. It is subject to review only for abuse of discretion.  They should also be sure to emphasize their defenses against the judgment as showing a meritorious defense is necessary.

A district court’s denial of a motion to set aside either default under Rule 55(c) or default judgment under Rule 60(b)(1), is reviewed for abuse of discretion. United States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (“Mesle”); TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 695 (9th Cir. 2001) (“TCI”).

The first step of our abuse of discretion test is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. The second step . . . is to determine whether the trial court’s application of the correct legal standard was (1) “illogical”, (2) “implausible,” or (3) without “support in inferences that may be drawn from the facts in the record. United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc).

Where a defendant seeks relief under Rule 60(b)(1) based upon “excusable neglect,” the court applies the same three factors governing the inquiry into “good cause” under Rule 55(c). Mesle, supra 615 F.3d at 1091.

Those factors are: (1) whether the plaintiff will be prejudiced, (2) whether the defendant has a meritorious defense, and (3) whether culpable conduct of the defendant led to the default. Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984).

Again the motion can be denied if it is shown that the moving defendant was culpable, and that conduct led to the default.  Although the law is settled that Rule 60 is remedial in nature, and should be liberally construed so that cases can be tried on the merits.

In discussing Rule 60 the Ninth Circuit Court of Appeal has stated that this rule, like all the Federal Rules of Civil Procedure, “is to be liberally construed to effectuate the general purpose of seeing that cases are tried on the merits.” Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (internal citations omitted.)

See also Federal Rule of Civil Procedure 1, “The Federal Rules should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

“Rule 60(b) is ‘remedial in nature and . . . must be liberally applied.’ ” TCI Group Life Ins. v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001) (internal citations and quotations omitted.)

To determine whether a party’s failure to meet a deadline constitutes “excusable neglect,” courts must apply a four factor equitable test, examining: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (adopting this test for consideration of Rule 60(b) motions).

The United States Supreme Court has stated that the determination of what conduct constitutes “excusable neglect” under Rule 60(b)(1) and similar rules “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Svcs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 395 (1993).

While a Rule 60 motion has a longer deadline than a California motion to vacate a default judgment it does differ in that showing a meritorious defense is required.

Attorneys or parties in civil litigation in United States District Court who wish to view a sample motion to vacate a default judgment under Rule 60(b)(1) sold by the author can see below.

http://www.scribd.com/doc/135549442/Sample-Motion-to-Vacate-Default-Judgment-Under-Rule-60-b-1

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you enjoy this blog post, tell others about it. They can subscribe to the author's weekly California and Federal legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm

To view all of the sample legal documents for use in California and Federal Courts sold by the author of this blog post visit http://www.scribd.com/legaldocspro/documents

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Rule 12(b)(5) motions to dismiss a complaint for insufficient service of process

http://www.legaldocspro.com/blog/motion-to-dismiss-under-rule-12b5-in-united-states-district-court/

Rule 12(f) motions to strike affirmative defenses in United States District Court

Rule 12(f) motions to strike affirmative defenses asserted in an answer to a complaint in United States District Court civil litigation are the topic of this blog post.  Rule 12(f) of the Federal Rules of Civil Procedure states in pertinent part that a district court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."

In most cases, a motion to strike affirmative defenses is made on the grounds that the affirmative defenses in the answer do not state a sufficient defense, or that the allegations are not relevant to the causes of action in the complaint and constitute immaterial or impertinent allegations which should be stricken.

The Ninth Circuit Court of Appeals has ruled that "The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . ." Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (overruled on other grounds in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).

The Ninth Circuit has defined “immaterial” matter as “that which has no essential or important relationship to the claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 984 F.2d, supra at 1527 (9th Cir.1993) (internal citation omitted) (overruled on other grounds, Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).

While motions to strike under Rule 12(f) are disfavored, a very good argument can be made that any answer that contains affirmative defenses that are insufficient, or contain immaterial allegations should be stricken to avoid having to litigate spurious issues. Plaintiffs in civil litigation in United States District court are increasingly filing motions to strike deficient or immaterial affirmative defenses contained in answers to complaints.

A recent decision from the United States District Court for the Northern District of California involved a case where a Rule 12(f) motion to strike affirmative defenses was filed by a plaintiff and was granted. The Judge applied a heightened pleading standard to the affirmative defenses in that case.

Any plaintiff who has been served with an answer by a defendant that contains affirmative defenses that do not state a sufficient defense and allegations that are not relevant to the causes of action in the complaint and are immaterial or impertinent allegations should consider filing a motion to strike under Rule 12(f).

Attorneys or parties in civil litigation in United States District Court who wish to view a sample motion to strike affirmative defenses in an answer pursuant to Rule 12(f) can see below.

http://www.scribd.com/doc/136643746/Sample-Motion-to-Strike-Affirmative-Defenses-in-Answer-for-United-States-District-Court

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

If you enjoy this blog post, tell others about it. They can subscribe to the author's weekly California and Federal legal newsletter by visiting the following link: http://www.legaldocspro.net/newsletter.htm

To view all of the sample legal documents for use in California and Federal Courts sold by the author of this blog post visit http://www.scribd.com/legaldocspro/documents

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Opposing a motion to dismiss under Rule 12(b)(6)

Opposing a motion to dismiss under Rule 12(b)(6) in United States District Court is the topic of this blog post.

A Motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure as used in the Federal Courts is analogous to a general demurrer as is used in California Courts. The motion seeks to have a Complaint dismissed on the grounds that it fails to state facts sufficient to constitute a cause or causes of action. The motion to dismiss can also be used in Bankruptcy Court litigation as well.

While motions to dismiss under Rule 12(b)(6) are often filed they are rarely successful as numerous Appellate Courts have ruled that a motion to dismiss under Rule 12(b)(6) is disfavored and is rarely granted.

A motion to dismiss under Rule 12(b)(6) is disfavored and rarely granted.  Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986) ("It is axiomatic that '[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'") (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1357, at 598.

The issue is not whether the plaintiff will prevail or not. The issue is whether the plaintiff is entitled to offer evidence in support of their claims.

The U.S. Supreme Court has stated: "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely, but that is not the test." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Rather, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

"In reviewing the allegations, this Court construes the complaint in a light most favorable to the plaintiff, accepting all of the factual allegations as true and determines whether the plaintiff can prove no set of facts in support of his claims that would entitle him to relief." Arrow v. Fed. Reserve Bank of St. Louis, 358 F.3d 392, 393 (6th Cir. 2004).

Even a cause of action for fraud which must be specifically pleaded satisfies the particularity requirement for fraud if it identifies circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations. Deutsch v. Flannery, 823 F.2d 1361, 1365 (9th Cir.1987).

And Courts rarely grant a dismissal of a complaint without leave to amend.

"Dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Schneider v. California DOC, 151 F.3d 1194, 1196 (9th Cir. 1998).

"Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim." Wright and Miller, Federal Practice and Procedure, vol 5A, 1357.

Attorneys or parties who wish to view a portion of a sample opposition to a motion to dismiss for sale by the author please use the link shown below.

http://www.scribd.com/doc/25605615/Sample-Opposition-to-Motion-to-Dismiss-under-Rule-12-b-6


The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at http://www.legaldocspro.com

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