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Table of Contents
-
Chapter 1 — Subject-Matter Jurisdiction of Federal District Courts - I. [1.1] Scope of Chapter
-
II. Federal Jurisdiction Generally - III. [1.9] Federal Question Jurisdiction
- Requirements for Federal Question Jurisdiction Under §1331
- [1.10] “Arising Under”
- [1.11] Constitution, Laws, or Treaties of the United States
- [1.12] Well-Pleaded Complaint Rule
- [1.13] Substantiality of the Federal Question
- [1.14] Amount in Controversy
- [1.15] Specific Statutory Grants of Jurisdiction
- [1.16] Banking Associations; Corporations
- [1.17] Patents, Copyrights, and Trademarks
- [1.18] Internal Revenue; Customs Duties
- [1.19] Civil Rights Actions
- [1.20] Sample Forms of Allegations of Jurisdiction in Federal Question Cases
- General Federal Question Jurisdiction
- [1.21] Constitution
- [1.22] Law of the United States
- [1.23] Treaty
- [1.24] Federal Question Jurisdiction Founded on a Particular Statute
- IV. [1.25] Diversity Jurisdiction
- [1.26] General Requirements for Diversity Jurisdiction
- [1.27] Parties
- [1.28] Citizenship of Natural Persons
- [1.29] Alienage
- [1.30] Citizenship of State and Local Governmental Bodies
- [1.31] Citizenship of Corporations
- [1.32] Determination of Corporations’ Principal Place of Business
- [1.33] Principal Place of Business of Corporations Incorporated in More than One State
- [1.34] Citizenship of Federal Corporations
- [1.35] Citizenship of Alien Corporations
- [1.36] Citizenship of Unincorporated Associations
- [1.37] Special Rules To Determine Diversity
- [1.38] Realignment of Parties
- [1.39] Shareholder Derivative Actions
- [1.40] Indispensable Parties
- [1.41] Non-Indispensable Parties
- [1.42] Interpleader Actions
- [1.43] Amount in Controversy
- [1.44] Aggregation of Claims — Single Plaintiff
- [1.45] Aggregation of Claims — Multiple Plaintiffs
- [1.46] Shareholder Derivative Actions
- [1.47] Class Actions
- [1.48] Counterclaims
- [1.49] Cross-Claims
- [1.50] Third-Party Claims
- [1.51] Limits on Diversity Jurisdiction
- [1.52] Domestic Relations
- [1.53] Probate Matters
- [1.54] Devices To Create Diversity
- [1.55] Change of State Citizenship
- [1.56] Assignment
- [1.57] Appointment of Representatives
- [1.58] Devices To Destroy Diversity
- [1.59] Sample Forms of Allegations of Jurisdiction in Diversity Cases
- [1.60] Natural Persons
- [1.61] Natural Persons — Multiple Plaintiffs or Defendants
- [1.62] Corporations
- [1.63] Partnerships
- V. [1.64] Ancillary and Pendent Jurisdiction
- VI. [1.69] Removal Jurisdiction
- Types of Cases in Which Removal Is Available
- [1.70] Federal Question
- [1.71] Diversity
- [1.72] Separate and Independent Claims or Causes of Action
- [1.73] Federal Officers
- [1.74] Civil Rights
- [1.75] Miscellaneous
- [1.76] Types of Cases in Which Removal Is Unavailable
- [1.77] Procedure for Removal
- [1.78] Who May Remove
- [1.79] Time Limitations
- [1.80] Notice of Removal
- [1.81] Sample Form of Notice of Removal Based on Federal Question Jurisdiction
- [1.82] Sample Form of Notice of Removal Based on Diversity Jurisdiction
- [1.83] Bond
- [1.84] Notice
- [1.85] When Removal Is Effected
- [1.86] Post-Removal Procedure
- [1.87] Remand
- [1.88] Sample Form of Motion To Remand on Ground of Lack of Federal Question
- [1.89] Appeal of Remand Orders
- VII. United States as a Party
- Chapter 2 — Jurisdiction of Courts Other than District Courts
- I. [2.1] Scope of Chapter
- II. Supreme Court of the United States
- [2.2] In General
- [2.3] Original Jurisdiction
- [2.4] Cases Affecting Ambassadors, Other Public Ministers, and Consuls
- [2.5] Cases in Which State Shall Be Party
- [2.6] Procedure in Original Actions
- [2.7] Appellate Jurisdiction
- [2.8] Review of Courts of Appeal
- [2.9] Review of Three-Judge District Courts
- [2.10] Other Review of District Courts
- [2.11] Jurisdiction over Military Appeals
- [2.12] Review of State Courts
- [2.13] Extraordinary Writs
- [2.14] Control of Court’s Docket
- III. Courts of Appeal
- [2.15] In General
- [2.16] Court of Appeals for the Federal Circuit
- [2.17] Final Decisions of District Courts
- [2.18] Interlocutory Decisions of District Courts
- [2.19] Interlocutory Orders Regarding Injunctions
- [2.20] Interlocutory Orders Affecting Receivers
- [2.21] Interlocutory Decrees in Admiralty
- [2.22] Controlling Questions of Law
- [2.23] Interlocutory Appeals to Court of Appeals for the Federal Circuit
- [2.24] Remandment Orders in Civil Rights Cases
- [2.25] The “Collateral-Order” Exception to Finality
- [2.26] Judgments, Orders, or Decrees in Bankruptcy
- [2.27] Decisions of United States Tax Court
- [2.28] Review or Enforcement of Orders of Administrative Agencies
- [2.29] Intervention
- [2.30] Concurrent Appeals
- [2.31] On Remand
- [2.32] Extraordinary Writs
- [2.33] Certification of Questions to Supreme Court
- IV. Court of Federal Claims
- [2.34] In General
- [2.35] Original Jurisdiction
- [2.36] Claims Against the United States
- [2.37] Congressional Reference Cases
- [2.38] References from Comptroller General
- [2.39] Accounts of Officers, Agents, or Contractors
- [2.40] Damages for Unjust Conviction
- [2.41] Disbursing Officers’ Claims
- [2.42] Oyster Growers’ Damages
- [2.43] Patent, Copyright, and Plant Variety Cases
- [2.44] Contractors’ Damages
- [2.45] Native American Claims
- [2.46] Extraordinary Writs
- [2.47] Calls and Discovery
- V. Court of International Trade
- VI. United States Tax Court
- VII. [2.54] United States Bankruptcy Courts
- VIII. Alien Terrorist Removal Court
- Chapter 3 — Personal Jurisdiction
- I. Introduction
- [3.1] Scope of Chapter
- [3.2] Personal Jurisdiction, Subject-Matter Jurisdiction, and Venue
- [3.3] Special Problems with Personal Jurisdiction in Federal Courts: Some Differences Between Federal and State Practices
- [3.4] Forms of Personal Jurisdiction: In Personam and in Rem Proceedings
- [3.5] Requisites of Personal Jurisdiction: Constitutional and Nonconstitutional Law
- II. Circumstances Permitting Personal Jurisdiction
- III. Manner of Delivering Notice
- [3.14] In General
- [3.15] Service on Competent Individual
- [3.16] Service on Corporation, Partnership, or Unincorporated Association
- [3.17] Service on Infant or Incompetent Person
- [3.18] Service on United States and Its Officers and Agencies
- [3.19] Service on State and Local Governments
- [3.20] Service in Foreign Country
- [3.21] Time Limits on Service
- [3.22] Effects of Immunity and Fraud or Force
- Chapter 4 — Parties
- I. [4.1] Scope of Chapter
- II. Selection of Parties to the Action
- Capacity To Sue or Be Sued
- [4.2] Individuals
- [4.3] Representatives
- [4.4] Minors and Incompetents
- [4.5] Corporations
- [4.6] Partnerships and Unincorporated Associations
- [4.7] Violation of Capacity Requirement
- Real Party in Interest
- [4.8] In General
- [4.9] Representative Parties
- [4.10] Assignees
- [4.11] Subrogees
- [4.12] Corporations
- [4.13] Violation of Real-Party-in-Interest Requirement
- [4.14] Multiple Parties and Claims — Overview of Rules 18 – 21 1. Indispensable and Necessary Parties (Rule 19)
- [4.15] Joinder (Rule 19(a))
- [4.16] Dismissal (Rule 19(b))
- [4.17] Raising Issue of Indispensability
- [4.18] Permissive Joinder (Rule 20)
- [4.19] Misjoinder (Rule 21)
- Joinder of Claims (Rule 18)
- [4.20] In General
- [4.21] Supplemental Jurisdiction
- [4.22] Same case or controversy
- [4.23] In diversity cases — for plaintiffs
- [4.24] In diversity cases — for defendants
- [4.25] In federal question cases
- [4.26] Discretionary nature
- [4.27] Statute of limitations
- [4.28] Contingent Claims
- [4.29] Comparison with State Practice
- III. Identity and Number of Defendants
- IV. Additional Procedures for Initiating Claims or Asserting Defenses in New or Existing Actions
- Interpleader
- [4.32] In General
- [4.33] Rule 22 Interpleader
- [4.34] Statutory Interpleader
- [4.35] Differences Between Proceedings Under Rule 22 and Statutory Interpleader
- [4.36] Comparison with State Practice
- Intervention
- [4.37] In General
- [4.38] Intervention of Right Under Rule 24(a)(2) — Prerequisites
- Permissive Intervention
- [4.39] In General
- [4.40] Jurisdictional Implications
- V. Substitution of Parties
- Chapter 5 — Venue in Federal Civil Cases
- I. Introduction
- II. Proper Venue
- [5.5] Venue Generally
- [5.6] The “General” Venue Statute
- [5.7] Residence
- [5.8] Determining the Residence of Individuals
- [5.9] Determining the Residence of Corporations
- [5.10] “Minimum Contacts,” Specific Jurisdiction, and General Jurisdiction
- [5.11] Long-Arm Statutes
- [5.12] “Doing Business”
- [5.13] Unincorporated Associations, Partnerships, and Limited-Liability Companies
- [5.14] “Substantial Part of the Events or Omissions Giving Rise to the Claim”
- [5.15] Contract
- [5.16] Tort
- [5.17] Venue If There Is No District in Which the Action Otherwise May Be Brought
- [5.18] Pendent and Ancillary Proceedings
- III. Venue Issues in Certain Types of Cases
- [5.19] Patent Infringement Cases
- [5.20] RICO Claims
- [5.21] Suits Against the United States
- [5.22] Suits Against Federal Officers or Agencies
- [5.23] Tax Refund Suits
- [5.24] Suits on Insurance
- [5.25] Admiralty Cases
- [5.26] Water Pollution
- [5.27] Suits Under the Freedom of Information Act
- [5.28] Suits Brought by the Federal Government
- Contractual Venue
- [5.29] Generally
- [5.30] Forum-Selection Clauses — Presumption of Validity
- [5.31] Overcoming the Presumption
- [5.32] Fraud
- [5.33] Inconvenience
- [5.34] Public Policy
- [5.35] Choice of Law
- [5.36] In Rem and Local Actions
- [5.37] Special Venue Table
- IV. Venue Practice
- Raising Venue as an Issue
- [5.38] Generally
- [5.39] When Venue in a District Is Improper
- [5.40] When Venue in a District Is Proper but Inconvenient
- [5.41] Pleading Venue
- [5.42] Waiver of Venue Objections
- Transfer or Dismissal for Improper Venue
- [5.43] Generally
- [5.44] Transfer vs. Dismissal Under §1406
- [5.45] Severance of Parties and Claims
- Transfer for Convenience
- [5.46] Generally
- [5.47] Purpose of §1404
- [5.48] Section 1404 Distinguished from the Forum Non Conveniens Doctrine
- Transfer vs. Dismissal Under §1404
- [5.49] Dismissal
- [5.50] Transfer
- [5.51] Burden of Proof
- Factors To Be Considered
- [5.52] Generally
- [5.53] Plaintiff’s Choice of Forum
- [5.54] Convenience or Availability of Counsel
- [5.55] Convenience of Parties
- [5.56] Convenience of Witnesses
- [5.57] The Interest of Justice
- [5.58] Multi-Forum Actions — The “First-To-File” Doctrine
- [5.59] Miscellaneous Factors
- [5.60] Preliminary Hearing and Determination
- Review of Venue Determination
- Appellate Review of §1404 Transfers
- [5.61] Generally
- [5.62] Review by Writ of Mandamus
- [5.63] Review on Interlocutory Appeal
- Review of §1406 Transfers
- [5.64] Generally
- [5.65] Jurisdictional Issues
- Law To Be Applied
- [5.66] Choice of Law and the Motion To Transfer or Dismiss
- [5.67] Choice of Law After Transfer
- [5.68] Illinois Judicial Districts
- V. [5.69] Appendix — Sample Motion To Transfer
- Chapter 6 — Pleading Under the Federal Rules of Civil Procedure
- I. Introduction
- II. Comparison Between State and Federal Pleading Requirements
- [6.5] Rules of Pleading in Federal Practice
- [6.6] General Inapplicability of State Rules in Federal Litigation
- [6.7] Reference Sources
- Basic Differences Between Federal and State Pleading Rules
- [6.8] “Notice” Pleading
- [6.9] Last Permitted Pleading
- [6.10] Prayer for Damages
- [6.11] Claims or Defenses Based on Written Documents
- [6.12] Abolition of Verification Rule
- [6.13] Motions To Strike
- III. Complaint Under Federal Rules of Civil Procedure
- IV. The Answer
- V. Motions Directed to Pleadings
- [6.21] General Observations
- General Mechanics
- [6.22] Notice of Motions and Objections (Nonemergency Matters)
- [6.23] Filing Pursuant to Local Rule
- [6.24] Time
- [6.25] Form of Documents To Be Filed
- [6.26] Briefs
- [6.27] Motion To Dismiss Complaint
- [6.28] Motion for More Definite Statement
- [6.29] Motion To Strike
- Motions for Judgment Before Trial
- [6.30] Motion for Judgment on Pleadings
- [6.31] Motion for Summary Judgment
- [6.32] Local Rules Governing Summary Judgment Motions
- [6.33] Assignment to Magistrate Judge
- [6.34] Motions for Attorneys’ Fees Under Fed.R.Civ.P. 11 and 28 U.S.C. §1927
- VI. [6.35] Counterclaims
- VII. [6.36] Cross-Claims
- VIII. [6.37] Third-Party Practice (Impleader)
- IX. Amendments to Pleadings
- X. Time Requirements
- XI. [6.44] Forms
- Chapter 7 — Motion Practice
- I. [7.1] Scope of Chapter
- II. Practice with Respect to All Motions
- [7.2] Applicable Federal Rules
- [7.3] Applicable Local Rules
- [7.4] Requirements as to Form
- [7.5] Filing Supporting Briefs
- [7.6] Briefing Schedules
- [7.7] Length of Memorandums in Support of Motions
- [7.8] Supporting Affidavits and Evidence
- [7.9] Notices for Motion
- [7.10] Serving and Filing Motions
- [7.11] Oral Arguments on Motions
- [7.12] United States Magistrate Judges
- [7.13] Review of Magistrate Judges’ Rulings on Non-Dispositive Matters
- [7.14] Review of Magistrate Judges’ Rulings on Dispositive Matters
- [7.15] Form for Combined Notice and Motion
- [7.16] Form for Supporting Affidavit
- [7.17] Form for Opposition to Motion
- [7.18] Form for Statement of Non-Opposition to Motion
- [7.19] Form for Proposed Order Granting or Denying Motion
- [7.20] Electronic Filing
- [7.21] Electronic Filing in the Northern District
- [7.22] Electronic Filing in the Central District
- [7.23] Electronic Filing in the Southern District
- III. Motions Directed to Pleadings
- IV. Motions for Judgment on the Pleadings and Summary Judgment
- V. Miscellaneous
- [7.34] Motions for Extensions of Time and Continuances
- [7.35] The Discovery Motion’s Statement on Efforts to Reach an Accord
- [7.36] Motions for Protective Orders
- [7.37] Motions for Default Judgment
- [7.38] Requests for a Decision and Requests for a Status Report
- [7.39] Notice of Claim of Unconstitutionality
- Chapter 8 — Discovery
- I. Procedures Prior to Beginning Formal Discovery
- II. Scope of Discovery
- [8.5] Standard of Discoverability
- [8.6] Certification That Discovery Is Proper
- Material Protected from Discovery Altogether
- [8.7] Irrelevant Material
- [8.8] Privileged Material
- [8.9] Attorney-Client Privilege
- [8.10] Accountant and Taxpayer Privileges
- [8.11] Other Privileges
- [8.12] Asserting and Challenging the Privilege
- [8.13] Exception to Privilege Between Insurer and Insured
- [8.14] Material Subject to Limited Protection
- [8.15] Sensitive or Confidential Material
- [8.16] Material Difficult or Expensive To Gather
- [8.17] Materials That May Be Discovered by a Showing of Substantial Need — Work Product
- [8.18] Work Product Exceptions: Statements and Materials of Experts
- [8.19] Experts Who Will Testify at Trial
- [8.20] Experts Who Will Not Testify at Trial
- [8.21] Parties’ and Witnesses’ Statements
- III. Sequence of Discovery — Timing and General Strategy Considerations
- IV. [8.27] Interrogatories
- [8.28] Why and When To Use Interrogatories
- [8.29] Scope and Number of Interrogatories
- [8.30] Filing of Interrogatories, Responses, and Other Discovery
- [8.31] Responding to Interrogatories
- [8.32] Duty of Responding Party
- [8.33] Objections
- [8.34] Option To Produce Business Records
- [8.35] Use of Interrogatories at Trial
- [8.36] Sample Forms
- [8.37] Definitions for Interrogatories
- [8.38] Interrogatory — Communications
- [8.39] Interrogatory — Documents
- [8.40] Interrogatory — Witnesses
- [8.41] Interrogatory — Subparagraphs
- [8.42] Objection to Interrogatory
- [8.43] Answer to Interrogatory
- V. [8.44] Requests To Produce Documents, Electronically Stored Information, and Tangibles and Requests for Entry on Land
- [8.45] Duty of Requesting Party
- Duty of Responding Party
- [8.46] Written Responses
- [8.47] Actual Production
- [8.48] Inspection and Sampling of Tangibles and Land
- Sample Forms
- [8.49] Prefatory Language for Request To Produce
- [8.50] Definitions for Requests To Produce
- [8.51] Requests
- [8.52] Response
- [8.53] Objection
- VI. [8.54] Depositions
- [8.55] When and Whose Depositions Should Be Taken
- [8.56] Procedures: Notice of Deposition and Subpoena of Nonparties — Requirements, Time, Place, Witness, and Method
- [8.57] Form and Issuance of Notices and Subpoenas
- [8.58] Time
- [8.59] Place
- [8.60] Persons To Be Deposed
- [8.61] Method of Conducting Deposition
- [8.62] Stenographic Reporting by Court Reporter
- [8.63] Innovative Techniques
- [8.64] Depositions without a court reporter
- [8.65] Electronic depositions
- [8.66] Telephone depositions
- [8.67] Document Production in Connection with Depositions
- Conduct of the Deposition
- [8.68] Beginning the Deposition
- [8.69] Objections
- [8.70] Questions calling for privileged information
- [8.71] Questions calling for wholly irrelevant material
- [8.72] Motion To Terminate or Limit Examination
- [8.73] Concluding the Deposition — Transcription
- Procedure After Transcription
- [8.74] Changing and Signing the Transcript
- [8.75] Certifying and Delivering the Transcript
- [8.76] Failure To Attend or To Serve Subpoenas
- [8.77] Depositions on Written Questions
- [8.78] Uses of Depositions
- [8.79] Impeachment
- [8.80] Admissions
- [8.81] Unavailability of Deponent
- [8.82] Use of Only a Portion of Deposition
- [8.83] Substitution of Parties
- [8.84] Objection to Admissibility
- [8.85] Sample Form of Notice of Deposition
- VII. [8.86] Physical and Mental Examinations
- [8.87] Standard for Compelling Examination
- [8.88] The Examiner
- [8.89] Time, Place, and Type of Examination
- [8.90] Exchange of Examiners’ Reports
- [8.91] Waiver of Privilege on Obtaining Report
- [8.92] Relation of Rule 35 to Other Discovery Devices
- [8.93] Sanctions
- Sample Forms
- [8.94] Motion Compelling Physical and/or Mental Examination
- [8.95] Order Compelling Physical and/or Mental Examination
- VIII. [8.96] Requests for Admission
- [8.97] Filing Requests
- [8.98] Time
- [8.99] Purposes of Requests for Admission
- [8.100] Scope of Requests
- [8.101] Form of Requests
- [8.102] Responding to Requests for Admission
- [8.103] Failure To Respond Will Constitute Admission
- [8.104] Objections
- [8.105] Answers
- [8.106] Enforcement Procedures
- [8.107] Effect of Admission
- [8.108] Withdrawing an Admission
- [8.109] Use of Admission in Another Proceeding
- [8.110] Definitions for Requests for Admission
- [8.111] Request for Admission of Facts and Genuineness of Documents
- [8.112] Sample Form of Answer to Request for Admission
- IX. [8.113] Supplementing Discovery Responses
- X. [8.114] Enforcement of Orders and Sanctions
- [8.115] Appropriate Court
- Enforcement Orders and Sanctions
- [8.116] Enforcement
- [8.117] Sanctions
- [8.118] Expenses for Failure To Admit
- [8.119] Participation in Framing a Discovery Plan
- [8.120] Appealability of Discovery Orders
- Sample Forms
- [8.121] In General
- [8.122] Certification of Compliance with Requirement To Resolve Discovery Dispute
- XI. [8.123] Electronic Discovery in Illinois Federal Courts
- Chapter 9 — Pretrial Procedures and Pretrial Conferences
- I. Scope of Chapter
- II. Introduction
- III. Pretrial Procedures
- [9.9] Time for Holding the Pretrial Conference
- [9.10] Place for Holding the Pretrial Conference
- [9.11] Who Must Attend the Pretrial Conference
- [9.12] Subjects for Consideration at the Pretrial Conference
- The Pretrial Order
- [9.13] Preparing the Pretrial Order
- [9.14] Contents of the Pretrial Order
- [9.15] The Nature of the Action and Jurisdiction
- Stipulations and Statements
- [9.16] Uncontested facts
- [9.17] Contested issues of fact and law
- [9.18] List of exhibits
- [9.19] List of witnesses
- [9.20] Depositions
- [9.21] Damages; itemized statement of special damages
- Miscellaneous
- [9.22] Depositions to be used at trial
- [9.23] Waivers of claims or defenses
- [9.24] Trial briefs
- [9.25] Jury trials
- [9.26] Nonjury trials
- [9.27] Use of the Pretrial Order
- [9.28] Amendment or Modification of the Pretrial Order
- IV. Appendix
- Chapter 10 — Practicing Before United States Magistrate Judges
- I. Scope of the Chapter: The History and Role of United States Magistrate Judges in the Federal Judicial System
- II. Jurisdiction of Magistrate Judges
- [10.4] Jurisdiction in Consent Civil Cases
- Specific Issues
- [10.5] Trials
- [10.6] The Need for Express Consent by the Client
- [10.7] Expression of Consent on the Record and Implied Consent
- [10.8] The Requirement That Consent Be Unanimous
- [10.9] The Scope of Consent to Jurisdiction: Unconditional and Limited Consents
- [10.10] The Right To Withdraw An Unconditional Consent
- [10.11] Vacating a Referral After the Parties Have Consented: Who Decides?
- [10.12] Advantages of Consenting to the Jurisdiction of a Magistrate Judge
- [10.13] Jury-Related Activities Under the “Additional Duties” Clause of §636(b)(3)
- III. [10.14] The Limited Scope of Magistrate Judge Authority in Nonconsent Civil Cases
- [10.15] Examples of Non-Dispositive Pretrial Matters
- [10.16] Sanctions
- [10.17] Dispositive Pretrial Matters
- [10.18] Habeas Corpus Petitions
- [10.19] Prisoner Civil Rights Actions
- Special Master Assignments
- [10.20] Assignments in Exceptional Circumstances
- [10.21] Assignments in Title VII Cases
- [10.22] Assignments from the Court of Appeals
- [10.23] The Limited Scope of §636(b)(3)
- Post-Liability Proceedings
- [10.24] Postjudgment Proceedings
- [10.25] Ascertaining Damages, Costs, and Distribution of Class Action Awards
- [10.26] Review of Administrative Proceedings
- [10.27] Motions To Set Aside Judgment
- [10.28] Limitations on Magistrate Judge Jurisdiction
- [10.29] Contempt Powers and Proceedings
- [10.30] Contempt Authority
- [10.31] Summary Criminal Contempt Authority
- [10.32] Additional Criminal Contempt Authority in Civil Consent and Misdemeanor Cases
- [10.33] Civil Contempt Authority in Civil Consent and Misdemeanor Cases
- [10.34] Criminal Contempt Penalties
- [10.35] Certification of Other Contempts to the District Judge
- [10.36] Bankruptcy Appeals
- [10.37] Nonconsensual Jury Trials
- [10.38] Case-Dispositive Motions and Matters
- [10.39] Geographic Limits
- IV. [10.40] Procedural Rules Governing Magistrate Judges
- [10.41] The Reference/Referral from the District Judge
- [10.42] Appearances Before the Magistrate Judge
- [10.43] The Requirement of Prompt Determination of Referred Matters
- [10.44] The Record of Proceedings
- Written Disposition by the Magistrate Judge
- [10.45] Non-Dispositive Matters
- [10.46] Dispositive Matters
- [10.47] Special Master Assignments
- [10.48] Notice of Right To Consent
- [10.49] Review by the District Judge of Objections to Decisions by the Magistrate Judge
- [10.50] Review of Rulings on Non-Dispositive Matters Pursuant to Rule 72(a)
- [10.51] The Clearly Erroneous or Contrary to Law Standard
- [10.52] The Time for Filing Objections to the Magistrate Judge’s Ruling
- [10.53] Waiver by Raising an Argument Before the District Judge Not Advanced Before the Magistrate Judge
- [10.54] Review of Rulings on Nonconsensual Dispositive Matters
- [10.55] The Requirement That Objections Be Specific
- [10.56] Waiver in the Court of Appeals of Arguments Not Presented to the District Judge on Review of a Magistrate Judge’s Order or Recommended Disposition
- [10.57] Scope of Review
- [10.58] Review of Findings of Fact
- [10.59] Special Master Assignments
- [10.60] Time for Filing
- [10.61] Standard of Review
- [10.62] The Appropriate Court To Hear Appeals in Consent Cases
- V. [10.63] Helpful Hints
- [10.64] Comply with the Local Rules and the Magistrate Judge’s Standing Orders
- [10.65] Provide Courtesy Copies to the Judge
- [10.66] Provide an Index of Exhibits and Be Sure the Exhibits Are Separated by Protruding Tabs
- [10.67] The Meet and Confer Requirement
- [10.68] Discovery Must be Issued in Time To Be Completed Before the Discovery Close
- Be Aware of Other Common Concerns
- [10.69] Don’t Put Off Bringing a Motion to Compel
- [10.70] Summary Judgment Briefing
- [10.71] Briefs and Supporting Memoranda
- [10.72] Remember the Golden Rule
- VI. [10.73] Conclusion
- Chapter 11 — Trial of Federal Cases
- I. Scope of Chapter
- II. [11.4] Northern District Trial Bar Membership
- III. Jury Procedures
- [11.5] Obtaining Jury Trial
- Juror Qualification
- [11.6] Challenge to Array
- [11.7] Eligibility and Qualification
- [11.8] Exemptions
- Jury Selection
- Examination
- [11.9] Role of Judge
- [11.10] Subjects of Inquiry
- Challenges
- [11.11] Challenges for Cause
- [11.12] Peremptory Challenges
- Jury Composition
- [11.13] Six-Member Jury
- [11.14] Majority Verdict
- [11.15] Alternate Jurors
- [11.16] Jury Waiver
- [11.17] Questioning by the Jury During Trial
- Jury Instructions
- [11.18] Request for Instructions
- [11.19] Objections to Instructions
- [11.20] Commenting on Evidence
- [11.21] Deadlock Jury Instruction
- [11.22] Benefits of Devices
- [11.23] Scope of Special Verdicts and Interrogatories
- [11.24] Form for Special Interrogatories
- [11.25] Choice of Laws
- [11.26] Consequences of Informing Jury as to Legal Effect
- [11.27] Effect of Inconsistent Interrogatory Answers
- [11.28] Waiver
- Special Verdicts and Interrogatories
- IV. Trial Mechanics
- [11.29] Split Trials
- Witness Subpoenas
- [11.30] General Comments
- [11.31] Form, Service, and Fees
- [11.32] Territorial Limitations
- [11.33] Subpoena Duces Tecum
- [11.34] Contempt
- [11.35] Deposition Testimony
- [11.36] Evidence
- [11.37] Preserving Record for Appeal
- [11.38] Adverse Witnesses
- [11.39] Consolidation
- [11.40] Offer of Judgment
- V. Trial and Posttrial Motions
- [11.41] Motion for Judgment as Matter of Law in Jury Trial (Formerly Motion for Directed Verdict)
- [11.42] Motion To Dismiss in Bench Trial
- Posttrial Motions
- [11.43] Time for Filing
- Grounds
- [11.44] Judgment After Trial (Formerly Judgment Notwithstanding the Verdict)
- [11.45] New Trial
- [11.46] Motion To Amend
- [11.47] Additur and Remittitur
- VI. Judgment
- Chapter 12 — Protecting the Record and Perfecting the Appeal
- I. [12.1] Scope of Chapter
- II. General Principles of Federal Appeals
- [12.2] Jurisdiction of the Courts of appeal
- [12.3] The Seventh Circuit
- [12.4] The Federal Circuit
- [12.5] Other Jurisdiction
- [12.6] Review of Magistrate Judgments
- [12.7] Final Decisions
- [12.8] Orders That Are Final as to Fewer than All Parties or All Claims
- [12.9] The Finality Requirement
- [12.10] No Just Reason for Delay Requirement
- [12.11] The Direction of Judgment Requirement
- [12.12] Orders for Immediate Transfer of Property
- [12.13] Collateral-Order Doctrine
- [12.14] Orders in the “Twilight Zone” of Finality
- Interlocutory Orders
- [12.15] Interlocutory Orders Appealable by Right
- [12.16] Interlocutory Orders Appealable by Permission
- [12.17] Interlocutory Orders in Putative Class Actions
- [12.18] Class Certification Orders
- [12.19] Remand Orders in Removed Class Actions
- [12.20] When Is Judgment “Entered”?
- [12.21] Extraordinary Writs
- III. Errors in Rulings on Pleadings
- Dismissal for Failure To State a Claim for Which Relief Can Be Granted
- [12.22] Motion Granted or Denied
- [12.23] Need To Preserve Point
- Dismissal for Lack of Jurisdiction
- [12.24] Motion Granted or Denied
- [12.25] Need To Preserve Point
- [12.26] Venue
- [12.27] Joinder of Additional Parties
- [12.28] Motion Granted or Denied
- [12.29] Need To Preserve Objection
- IV. Errors on Motions
- [12.30] Motions To Dismiss
- [12.31] Motions for Summary Judgment
- [12.32] Granting, Partially Granting, or Denying
- [12.33] Denials and Partial Grants of Summary Judgment that Are Injunctions
- Discovery
- [12.34] Generally Not Appealable
- [12.35] Entire Action Is One for Discovery
- [12.36] Contempt
- [12.37] Mandamus
- [12.38] Sanctions for Discovery Violations
- [12.39] Motions in Limine
- V. [12.40] Errors Occurring During Trial
- [12.41] Timeliness of Objections
- [12.42] Specificity of Objections
- [12.43] Danger Areas in Protecting the Record for Appeal
- [12.44] Challenging the Selection of the Array or Venire
- [12.45] Objections Regarding Challenges
- [12.46] Making a Record of Publicity During Trial
- Objections to the Conduct of Counsel or the Court
- [12.47] Conduct of Opposing Counsel
- [12.48] Conduct of Court
- [12.49] Prejudicial remarks
- [12.50] Questioning of witnesses
- [12.51] Commenting on evidence
- [12.52] Conduct during jury deliberation
- [12.53] Errors During Offer and Receipt of Evidence
- Exclusion of Evidence
- [12.54] Objections to opponent’s evidence
- [12.55] Objections to improper questions
- [12.56] Offering Evidence
- [12.57] Expert Testimony
- [12.58] Challenging expert qualifications
- [12.59] Lack of foundation for expert opinion
- [12.60] Opinion outside scope of expert’s field of knowledge
- [12.61] Hypothetical questions
- [12.62] Motions During Trial
- [12.63] Motion for Judgment as a Matter of Law in Jury Cases
- [12.64] Timeliness
- [12.65] Specificity
- [12.66] Motion for Judgment on Partial Findings in Nonjury Cases
- [12.67] Jury Instructions
- [12.68] Objection to Instructions
- [12.69] Instructions Must Be Tendered
- [12.70] Charge to the Jury
- [12.71] Objections to the Verdict
- [12.72] Objections to Form and Content of Verdict Forms
- [12.73] Objections to Verdict Returned by the Jury
- [12.74] General Verdicts
- [12.75] Special Verdicts
- [12.76] General Verdicts with Written Questions
- [12.77] Polling the Jury
- VI. [12.78] Posttrial Motions
- [12.79] Rigid Time Limits for Filing
- [12.80] Renewed Motion for Judgment as a Matter of Law and Alternative Motion for New Trial
- [12.81] Renewed Motion for Judgment as a Matter of Law Granted or Denied
- [12.82] Motion for New Trial Granted or Denied
- [12.83] Relation Between Renewed Motion for Judgment as a Matter of Law and Alternative Motion for New Trial
- [12.84] Both Motions Granted
- [12.85] Both Motions Denied
- [12.86] Renewed Motion for Judgment as a Matter of Law Granted and Motion for New Trial Denied
- [12.87] Motion for Amended or Additional Findings and Alternative Motion for a New Trial
- [12.88] Remittitur
- [12.89] Additur
- [12.90] Costs and Attorneys’ Fees
- VII. [12.91] Perfecting an Appeal from District Court
- Notice of Appeal
- [12.92] Jurisdictional Necessity
- [12.93] Contents of Notice of Appeal
- Time To File
- [12.94] General Limits
- [12.95] Additional Appeals
- [12.96] Identification of Counsel
- [12.97] Form of Notice of Appeal
- Extensions of Time
- [12.98] Motions Suspending Time for Filing Notice of Appeal
- [12.99] Motion To Extend Time To File Notice of Appeal for “Excusable Neglect or Good Cause”
- [12.100] Cross-Appeals
- [12.101] Effect of Notice of Appeal on District Court’s Jurisdiction
- Docketing Statement
- [12.102] Filing the Docketing Statement
- [12.103] Contents of the Docketing Statement
- [12.104] Appeal Bonds
- [12.105] Cost Bond
- [12.106] Sample Form of Cash Deposit Cost Bond
- [12.107] Sample Form of Cost Bond with Corporate Surety
- Supersedeas Bond
- [12.108] Appeals from Money Judgments
- [12.109] Sample Form of Money Judgment Supersedeas Bond
- [12.110] Preparing and Transmitting the Record to the Court of Appeals
- VIII. Staying the Judgment Pending Appeal
- Chapter 13 — Class Actions
- I. Introduction
- II. Class Certification — Requirements
- [13.4] In General
- [13.5] District Court’s Role in the Certification Process
- [13.6] Court Must Perform a “Rigorous Analysis” of Rule 23 Requirements
- Court May Look Beyond Pleadings in Ruling on Class Certification
- [13.7] Court Should Make Factual and Legal Inquiries
- [13.8] Class Discovery
- [13.9] Class Certification Hearings
- [13.10] Class Must Be Identifiable
- [13.11] Class Representative Must Have Standing
- [13.12] Rule 23(a) Requirements for Class Certification
- [13.13] Rule 23(a)(1) — Numerosity
- [13.14] Rule 23(a)(2) — Commonality
- [13.15] Rule 23(a)(3) — Typicality
- [13.16] Rule 23(a)(4) — Adequacy of Representation
- [13.17] Rule 23(b) Requirements for Class Certification — The Different Types of Classes
- [13.18] “Mandatory” Class Actions Under Rule 23(b)(1) or Rule 23(b)(2)
- [13.19] Rule 23(b)(1) Class Actions
- [13.20] Rule 23(b)(1)(A)
- [13.21] Rule 23(b)(1)(B)
- [13.22] Rule 23(b)(2) Class Actions
- [13.23] Rule 23(b)(3) Class Actions
- [13.24] Predominance
- [13.25] Variation in factual issues
- [13.26] Variation in controlling law
- [13.27] Superiority
- III. Class Certification Procedures — Rule 23(c)
- [13.28] Timing of the Class Certification Motion — Rule 23(c)(1)(A)
- Court Order Certifying the Class
- [13.29] What Must Be Included in the Class Certification Order — Rule 23(c)(1)(B)
- [13.30] Class Certification Order May Be Altered or Amended Before Final Judgment — Rule 23(c)(1)(C)
- [13.31] Class Certification Notice — Rule 23(c)(2)
- [13.32] Notice for Rules 23(b)(1) and 23(b)(2) Classes
- [13.33] Notice for Rule 23(b)(3) Classes
- [13.34] Method of Giving Rule 23(b)(3) Notice
- [13.35] Form of Rule 23(b)(3) Class Certification Notice
- [13.36] Notice in Class Actions That Seek Both Equitable and Monetary Relief
- [13.37] Final Judgment Orders in Class Actions — Rule 23(c)(3)
- [13.38] Classes May Be Certified for Issues — Rule 23(c)(4)
- [13.39] Court May Certify Subclasses — Rule 23(c)(5)
- IV. Court’s Authority to Issue Procedural Orders — Rule 23(d)
- [13.40] Wide Discretion To Administer Class Actions
- [13.41] Orders Governing the Progress of Class Action Litigation — Rule 23(d)(1)(A)
- [13.42] Notice To Protect Class Members — Rule 23(d)(1)(B)
- [13.43] Restrictions on Class Representatives or Intervenors — Rule 23(d)(1)(C)
- [13.44] Amended Pleadings To Eliminate the Class if Certification Is Denied — Rule 23(d)(1)(D)
- [13.45] Authority To Issue Orders Regarding Procedural Matters — Rule 23(d)(1)(E)
- V. Class Action Settlements — Rule 23(e)
- VI. [13.52] Interlocutory Appeals — Rule 23(f)
- VII. [13.53] Appointment of Class Counsel — Rule 23(g)
- VIII. [13.54] Attorneys’ Fees Award — Rule 23(h)
- IX. [13.55] Class Action Fairness Act of 2005
- Jurisdiction/Removal Provisions of the Class Action Fairness Act
- [13.56] Expansion of Federal Court Jurisdiction
- [13.57] General Rule: Minimal Diversity and $5 Million at Issue
- [13.58] “Commencement On or After” February 18, 2005
- [13.59] Exceptions to the General Rule
- [13.60] “Mass Actions”
- [13.61] Changes in Citizenship Test for Unincorporated Associations
- [13.62] Jurisdiction After Class Certification Denial
- [13.63] Removal Procedures Under the Class Action Fairness Act
- [13.64] Motion To Remand
- [13.65] Non-Removable Actions
- [13.66] Settlement Provisions of the Class Action Fairness Act
- [13.67] Coupon Settlements
- [13.68] Other “Protections” for Settlement Class Members
- [13.69] Notice Requirements
- [13.70] Officials To Notify
- [13.71] Notice and Final Approval
- [13.72] Contents of Notice
- [13.73] Consequences of Failure To Provide Notice
- List of Forms
- Index
- Table of Cases
Authors
- Carolyn R. Bates
Carolyn R. Bates
No bio available.
- Jack L. Block
Jack L. Block
No bio available.
- Wilber H. Boies
Wilber H. Boies
Wilber H. Boies is Senior Counsel with McDermott Will & Emery, in Chicago, concentrating his practice in business litigation, including defense of class actions involving securities, employee benefits, and consumer fraud claims. Mr. Boies is the author of numerous articles on federal court litigation. He served as 1991 – 1992 Chair of the Chicago Bar Association’s Class Litigation Committee. Mr. Boies received his A.B. from Brown University and his J.D. from the University of Chicago Law School.
- Frederick H. Branding
Frederick H. Branding
No bio available.
- Andrew D. Campbell
Andrew D. Campbell
Andrew D. Campbell is a Partner with Novack and Macey LLP, in Chicago, concentrating his practice in commercial litigation, appeals, and data security. Mr. Campbell is the firm’s Hiring Partner and is Cochair of the firm’s practice group on close corporations, partnerships, and limited liability companies. He was one of the developers of a web application that integrates frequently invoked pretrial provisions of the Illinois Code of Civil Procedure and the Supreme Court Rules. Mr. Campbell earned his B.A. from the University of Michigan and his J.D. magna cum laude from Loyola University Chicago School of Law.
- Alfonso Canela
Alfonso Canela
No bio available.
- Gary S. Caplan
Gary S. Caplan
No bio available.
- Jeffrey Cole
Jeffrey Cole
Jeffrey Cole is a Magistrate Judge with the United States District Court, Northern District of Illinois, in Chicago. He is currently the Editor-in-Chief of The Circuit Rider, The Journal of the Seventh Circuit Bar Association. He is an adjunct professor at Northwestern University School of Law. He is the author of over 50 articles in various law journals and has been a guest lecturer and moderator in scores of continuing legal education programs for IICLE® and other professional organizations on trial practice, evidence, and bench and bar relationships. He is on the Board of Directors for the Northern District of Illinois Court Historical Association and is a Director of the Chicago Chapter of the Federal Bar Association. Judge Cole received his B.S. from the University of Illinois and his J.D. from DePaul University College of Law.
- John Dodd
John Dodd
No bio available.
- James M. Ellis
James M. Ellis
No bio available.
- Charles M. Evans
Charles M. Evans
No bio available.
- Brian A. Fogerty
Brian A. Fogerty
No bio available.
- Greg A. Gaz
Greg A. Gaz
No bio available.
- Sheila K. Hathi
Sheila K. Hathi
Sheila K. Hathi is currently a corporate attorney for Hewlett-Packard Company in Palo Alto, California. Ms. Hathi received her B.A. and her B.S. from the University of Illinois and her J.D. from the University of Illinois College of Law.
- Frederick J. Hess
Frederick J. Hess
No bio available.
- Charles E. Joern, Jr.
Charles E. Joern, Jr.
No bio available.
- Kristen C. Klanow
Kristen C. Klanow
Kristen C. Klanow is a Partner at McDermott Will & Emery LLP, in the Chicago office, where she concentrates her practice in commercial litigation. After law school, she clerked for the Honorable Philip R. Martinez of the United States District Court for the Western District of Texas. Ms. Klanow is a member of the Illinois State Bar Association. She received her B.A. from the University of Michigan and her J.D. cum laude from the University of Michigan Law School.
- Charles D. Knight
Charles D. Knight
No bio available.
- Paul R. Lynch
Paul R. Lynch
Paul R. Lynch is a Partner in Craig & Craig, LLC in Mt. Vernon. His primary practice has been the defense of civil litigation. He is on the Board of Directors for the Illinois Association of Defense Trial Counsel, and was President of the Southern Illinois American Inn of Court. Mr. Lynch is a Fellow of the American College of Trial Lawyers, was rated AV by Martindale Hubbell, and has been selected as a Leading Lawyer in Illinois. He is a member of the Illinois State and Jefferson County Bar Associations and the Illinois Appellate Lawyers Association. Mr. Lynch obtained his B.A. magna cum laude from Loyola University Chicago and graduated from the University of Illinois College of Law.
- Mitchell L. Marinello
Mitchell L. Marinello
Mitchell L. Marinello is a Partner with Novack and Macey LLP, in Chicago, and has more than 30 years of experience in commercial litigation, arbitration, and trials. Mr. Marinello is a frequent author on issues relating to business law and arbitration. Mr. Marinello earned his B.A. magna cum laude from Wesleyan University, was a fellow of the Thomas J. Watson Foundation (studying labor policy) in London, England, and earned his J.D. from New York University School of Law.
- Richard L. Miller II
Richard L. Miller II
Richard L. Miller II is a Partner at Miller PC, in Chicago, where he concentrates his practice in commercial litigation and class actions. Mr. Miller is an Adjunct Professor at Northwestern School of Law, where he has served as an instructor for Trial Advocacy since 2005 and Advanced Trial Advocacy since 2013. He has been an arbitrator for the American Arbitration Association since 2008, the FINRA since 2018, and the Cook County Mandatory Arbitration Program from 2003 to 2005. Mr. Miller has been repeatedly recognized as a “Leading Lawyer,” “Super Lawyer,” and “Rising Star.” He is a Past President of the Law Alumni Board for the University of Illinois College of Law. Mr. Miller graduated magna cum laude from the University of Illinois College of Business and cum laude from the University of Illinois College of Law.
- Christopher S. Moore
Christopher S. Moore
Christopher S. Moore is a Partner at Novack and Macey LLP, in Chicago, where he concentrates his practice in complex business litigation. Mr. Moore is a member of the Illinois State Bar Association and is Coeditor of the website of the Alternative Dispute Resolution Committee of the American Bar Association Section of Litigation. He received his B.A. from the University of Chicago and his J.D. from the University of Illinois College of Law.
- James V. O'Brien
James V. O'Brien
No bio available.
- Jeffrey A. Parness
Jeffrey A. Parness
Jeffrey A. Parness is a Professor Emeritus of Law at Northern Illinois University College of Law where he teaches classes in civil procedure and parentage law. He is an elected member of the American Law Institute and a former Law Clerk in the United States District Court for the Northern District of Illinois. Mr. Parness received his B.A. Phi Beta Kappa from Colby College and his J.D. from the University of Chicago Law School.
- Henry Pietrkowski
Henry Pietrkowski
Henry Pietrkowski is a Litigation Partner in the Financial Industry Group of Reed Smith LLP, in Chicago. Mr. Pietrkowski is a member of the firm’s Financial Industry Group focusing on high stakes consumer class action defense for a variety of industries, including life insurance, financial services, pharmaceutical, and medical device companies. He has significant experience defending putative class actions involving the federal Telephone Consumer Protection Act (TCPA) as well as life insurance and annuity issues. Mr. Pietrkowski has been recognized as an Illinois Super Lawyer in the class action category (2013 – 2015). He received his B.A. from Northwestern University and his J.D. with high honors, Order of the Coif, from IIT/Chicago-Kent College of Law, where he was Notes and Comments Editor of the Chicago-Kent Law Review.
- Michael R. Robinson
Michael R. Robinson
Michael R. Robinson is an Administrative Law Judge with the Illinois Human Rights Commission in Springfield. He has authored several articles for the Illinois State Bar Association’s Illinois Bar Journal, of which three were cited as winners of the Lincoln Legal Writing Award in 1985, 1986, and 1989. Judge Robinson received his B.A. from the University of Illinois and his J.D. from the University of Nebraska College of Law.
- David Z. Smith
David Z. Smith
David Z. Smith is a litigation Partner in Reed Smith LLP’s Financial Industry Group, in Chicago, where he focuses on complex litigation, including business and commercial disputes and class action defense. Mr. Smith has defended numerous class actions in Illinois and across the county involving a variety of subjects and claims, including TCPA, consumer fraud, mortgage lending, FCRA, life insurance market conduct, data security breaches, and privacy-related claims. He has authored several articles and publications relating to class action law and has spoken on issues relating to data security breaches. He earned his B.A., Phi Beta Kappa, magna cum laude, from Brandeis University, and his J.D. magna cum laude from Harvard Law School.
- Geoffrey A. Vance
Geoffrey A. Vance
No bio available.
- Robert T. Varney
Robert T. Varney
No bio available.
- Michael S. Yellin
Michael S. Yellin
No bio available.
Federal Civil Practice (ARCHIVED 2010 EDITION & 2012 SUPPLEMENT)
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