ORDER GRANTING THE DEFENDANTS' MOTION TO DISMISS

Re: ECF No. 7.

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

In this mortgage-foreclosure case, Penny Patino, proceeding pro se, brings nine claims against three defendants: Franklin Credit Management Corporation, Bosco Credit, and The Wolf Firm.1 Ms. Patino's claims, though difficult to understand, center around the formation, rescission, and foreclosure of a debt secured by a deed of trust on her Danville, California property.2 The defendants now move to dismiss the complaint under Rule 12(b)(6).3 The court can decide this matter without oral argument. N.D. Cal. Civ. L.R. 7-1(b). The court grants the defendants' motion because Ms. Patino fails to state a plausible claim for relief but grants Ms. Patino leave to amend.

STATEMENT

The following facts in this section are from the complaint and the loan-related documents, the existence of which the court judicially notices as matters of the public record (see Analysis Section 1, below).

Ms. Patino lives in Danville, California.4 She is sixty-four years old, "disabled [in] body and mentally not capable of contracting[,]" and "was pursued and pressured into signing" a loan with the defendants in July 2006.5 The loan, a revolving credit facility for $159,984, was secured by a deed of trust on her Danville property in favor of the lender, Cal State 9 Credit Union.6 Ms. Patino wrote a check to return the money and rescind the loan.7 Yet "they" (the defendants) wrote "VOID" on and an "X" through Ms. Patino's check and sent it back.8 Over seven years later, a new trustee — The Wolf Firm — demanded that Ms. Patino pay a lump sum within thirty days.9

Over the years, there were several publicly recorded documents purportedly related to Ms. Patino's loan. On May 28, 2008, Cal State 9 Credit Union assigned the deed of trust to defendant Bosco Credit, but Ms. Patino asserts that Cal State 9 told her the transfer was to defendant Franklin Credit.10 In September 2015, The Wolf Firm was substituted as trustee on the deed.11 Two weeks later, The Wolf Firm filed a Notice of Default and Election to Sell on Ms. Patino's property.12 Ms. Patino asserts that the notice was forged, contains the incorrect loan balance, and was therefore void.13 Ms. Patino told a "Sindy" about the notice's problems, but Sindy said that it was "not the[ir] problem" and that the demand made was "OK."14

A Notice of Trustee's Sale was then filed and Ms. Patino filed suit.15 She specifically asserts the following nine claims against each defendant: (1) violation of "Consumer Financial Protection Bureau 1/2014;" (2) violation of "Penal Code Section 115;" (3) violation of "Dodd-Frank Act 1/10/2014;" (4) violation of article I, section 1 of the California Constitution; (5) violation of California Finance Lenders Law, Cal. Fin. Code §§ 22000 et seq.; (6) "statute of limitations 6 years;" (7) negligence; (8) declaratory relief; and (9) negligent infliction of emotional distress.16 The defendants move to dismiss the complaint under Rule 12(b)(6).17

RULE 12(B)(6) STANDARD

A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief" to give the defendant "fair notice" of what the claims are and the grounds upon which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not need detailed factual allegations, but "a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a claim for relief above the speculative level . . . ." Twombly, 550 U.S. at 555 (internal citations omitted).

To survive a motion to dismiss, a complaint must contain sufficient factual allegations, accepted as true, "`to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of `entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

If a court dismisses a complaint, it should give leave to amend unless the "the pleading could not possibly be cured by the allegation of other facts." Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).

ANALYSIS

1. Requests for Judicial Notice

Both parties make requests for judicial notice under Federal Rule of Evidence 201.18 "[A] court may judicially notice a fact that is not subject to reasonable disputes because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b).

First, the defendants ask that the court judicially notice six publicly recorded documents: (1) the credit line deed of trust; (2) a grant deed signed by Ms. Patino; (3) the Assignment of Deed of Trust; (4) the Substitution of Trustee; (5) the Notice of Default and Election to Sell Under Deed of Trust; and (6) the Notice of Trustee's Sale.19 The court takes judicial notice of the existence of these documents as matters of the public record, but not the truth of the contents to the extent disputed by Ms. Patino. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002) ("[A] court may not take judicial notice of a fact that is `subject to reasonable dispute.'").

Second, Ms. Patino asks the court to judicially notice several documents.20 The defendants oppose the request.21 The court does not take judicial notice of these documents because none of them presents the type of fact or existence that is generally known in the jurisdiction or that can be readily and accurately determined. Ms. Patino's records are instead partially handwritten, incomplete loan documents and private communications that the court cannot judicially notice. The court therefore denies Ms. Patino's request.

2. Ms. Patino Does Not State a Plausible Claim to Relief

2.1 Claims 1 and 3: the Consumer Financial Protection Bureau and the Dodd-Frank Act

Ms. Patino asserts a claim for violation of the "Consumer Financial Protection Bureau 1/2014" and the "Dodd-Frank Act 1/10/2014."22 In her CFPB claim, she alleges that all defendants failed to provide "notification of foreclosure alternatives" and failed to provide "clear monthly mortgage statements."23 In her Dodd-Frank claim, she asserts essentially the same things, alleging that she did not receive monthly mortgage statements.24 She also says that she did not receive written mortgage workout options from Franklin Credit.25

There are several problems with Ms. Patino's claims. First, Dodd-Frank created the Consumer Financial Protection Bureau; her styling of these two claims is confusing. Second, the CFPB is an agency designed to "enforce Federal consumer financial law"; it is not a law itself that can be violated. See 12 U.S.C. § 5511(a). Third, and most important, Ms. Patino fails to identify (1) the specific legal basis for her claims and (2) the specific defendants responsible for the alleged wrongdoing (other than one allegation against Franklin Credit). This is critical because the complaint must be specific enough to allow the defendants to answer, which they cannot do without more information. Claims not based on specific laws or on specific defendants' misconduct are too ambiguous to give notice under Rule 8(a)(2). The court therefore dismisses Ms. Patino's claims without prejudice.

2.2 Claim 2: California Penal Code 115

Ms. Patino alleges that the defendants violated California Penal Code section 115, which makes knowingly recording a forged instrument a felony. Cal. Pen. Code § 115(a).26 Ms. Patino's claim is based on The Wolf Firm's recording of the Notice of Default despite Ms. Patino's warning that it contained an incorrect loan balance and a forged signature (supposedly evidenced by different handwriting styles).27 The problem with this claim is that section 115 is a criminal statute that does not provide a private right of action. See Cal. Pen. Code § 115; Ellis v. City of San Diego, 176 F.3d 1183, 1189 (9th Cir.1999) (finding district court properly dismissed claims for violation of California Penal Code sections that did not create individual rights); Woodrow v. Cnty. of Merced, No. 1:13-CV-01505-AWI, 2015 WL 164427, at *8 (E.D. Cal. Jan. 13, 2015) (finding "no indication of a private right of action" in section 115); Byrd v. Sand Canyon Corp., No. CIV. S-10-1914, 2010 WL 3942830, at *2 (E.D. Cal. Oct. 7, 2010).

Because California Penal Code section 115 does not provide a private right of action, the court dismisses this claim with prejudice. Ms. Patino may not reassert this claim.

2.3 Claim 4: Article 1, Section 1 of the California Constitution

Ms. Patino also brings a claim under article 1, section 1 of the California Constitution.28 That section provides that all people are "free and independent and have inalienable rights" — which includes "enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." Cal. Const. art. 1, § 1. The defendants do not make a specific argument to dismiss this claim; Ms. Patino argues this means the motion should be denied.29 The court will, however, address the plausibility of this claim because the defendants broadly move to dismiss the entire complaint.30

Ms. Patino's claim here appears based on several alleged wrongdoings (i.e. she was not capable of contracting; she rescinded the loan; and the defendants are foreclosing with no expectation of profit), all of which she asserts the CFPB says violate her "constitutional right to defending [her] life."31 This raises several issues. First, the CFPB does not establish what does and does not violate the California Constitution. Second, the only allegations against the named defendants — that Franklin Credit did not send her a letter and has "scammed many homeowners" — are insufficient to plausibly assert a deprivation of her constitutional rights.32 The rest of her allegations are based on the formation and rescission of the loan agreement with Cal State 9 Credit Union, a non-party.33 Third, Ms. Patino has not plausibly pleaded that the defendants' sale of the property would "give Defendants -0- money" (just because she has no equity does not mean the defendants will not receive any sale proceeds), or that such a result would be unlawful under the California Constitution. And fourth, "nonjudicial foreclosure of a deed of trust constitutes private action authorized by contract[.]" Garfinkle v. Superior Court of Contra Costa County, 21 Cal.3d 268, 282 (1978). The California Constitution's declaration of rights provisions generally — though not always — have a state action requirement. See Hill v. Nat'l Collegiate Athletic Ass'n, 7 Cal.4th 1, 19-20 (1994) (no state action requirement for right to privacy, but noting others). The defendants are private actors exercising their right to non-judicial foreclosure, and absent authority to the contrary, Ms. Patino's claim under article I, section 1 appears to require state action.

The court dismisses Ms. Patino's claim without prejudice.

2.4 Claim 5: California Finance Lenders Law

Ms. Patino asserts that the defendants violated the California Finance Lenders Law by making a loan that she was incapable of repaying.34 See Cal. Fin. Code §§ 22000 et seq. Under cited lenders law regulations:

Cal. Code Regs. tit. 10, § 1452; Cal. Fin. Code § 22150. Here, Ms. Patino asserts that the defendants violated this section because "[t]here would . . . be a[n] 80% loan to value" ratio.35

There are two issues with this claim. First, the entity that made the loan — Cal State 9 Credit Union — is not a party to the suit. The named defendants did not make the loan, and thus could not have failed to take these factors into consideration. Second, although Ms. Patino asserts that there "would be" a loan-to-value ratio of 80%, she does not allege facts plausibly showing that (1) the loan-to-value ratio was 80% (i.e. she does not plead the value of her home); (2) the lender did not consider these factors; or (3) she was not reasonably able to repay the loan (i.e. she does not plead her income and other debt obligations). See O'Donovan v. Cashcall, Inc., No. C08-03174 MEJ, 2009 WL 1833990, at *11 (N.D. Cal. June 24, 2009) (dismissing claim where plaintiff did not allege facts, "such as information about Plaintiffs' income and other debt obligations, although such information is presumably within Plaintiffs' knowledge").

The court accordingly dismisses the claim without prejudice.

2.5 Claim 6: Statute of Limitations

Ms. Patino calls her sixth claim "statute of limitations 6 years."36 Without citing specific case law or statutory authority, she asserts that "enforcement of the deed of trust must take place during the six year period" after default.37 There are two distinct rights of foreclosure: judicial foreclosure and non-judicial foreclosure. See Ung v. Koehler, 135 Cal.App.4th 186, 192 (2005). The right of judicial foreclosure terminates on the expiration of the statute of limitations on the underlying debt — typically, four years after the final maturity date. Id. at 193, 198 (citing Cal. Civ. Proc. §§ 337, 725a, 2911). The right of non-judicial foreclosure, on the other hand, terminates ten years after the final maturity date if the maturity date is "ascertainable from the recorded evidence of indebtedness." Cal. Civ. Code § 882.020(a)(1).

The defendants here are engaging in a non-judicial foreclosure. The evidence of indebtedness (a/k/a "the record" a/k/a the deed of trust),38 shows that the maturity date on Ms. Patino's credit line is July 20, 2031.39 That means the right of non-judicial foreclosure does not expire until July 20, 2041 — ten years after the maturity date. The Wolf Firm filed the Notice of Default on October 8, 2015, well before the statute of limitations expires.40 The court therefore dismisses the claim without leave to amend because amendment would be futile.

2.6 Claims 7 and 9: Negligence and Negligent Infliction of Emotional Distress

Ms. Patino brings separate claims for negligence and negligent infliction of emotional distress.41 The elements of a negligence claim are (1) the existence of a duty to exercise due care, (2) breach of that duty, (3) causation, and (4) damages. See Merrill v. Navegar, Inc., 26 Cal.4th 465, 500 (2001). "`Negligent infliction of emotional distress' is not an independent tort doctrine." Varnado v. Midland Funding LLC, 43 F.Supp.3d 985, 990 (N.D. Cal. 2014) (citing Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 984 (1993)). It is instead "a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply." Varnado, 43 F. Supp. 3d at 990 (quoting Griffith v. Bank of Am., N.A., No. CV-11-5867 PA (FFMx), 2011 WL 6849048, at *9 (C.D. Cal. Dec. 13, 2011)) (internal quotations omitted).

Under California law, financial institutions generally do not owe borrowers a duty of care unless their involvement in the loan transaction exceeds the scope of their "conventional role as a mere lender of money." See Nymark v. Heart Fed. Savings & Loan Ass'n, 231 Cal.App.3d 1089, 1095-96 (1991) (citations omitted). To determine "whether a financial institution owes a duty of care to a borrower-client," courts must balance the following non-exhaustive factors:

Id. at 1098 (quotation marks and citations omitted). See Rowland v. JPMorgan Chase Bank, N.A., No. C 14-00036 LB, 2014 WL 992005, at *8-9 (N.D. Cal. Mar. 12, 2014); Ansanelli v. JP Morgan Chase Bank, N.A., No. C 10-03892 WHA, 2011 WL 1134451, at *7 (N.D. Cal. Mar. 28, 2011).

Here, Ms. Patino does not plausibly plead that the defendants owed her a duty of care. She instead re-alleges many of her other grievances and concludes that these acts amount to negligence. For example, she says "No monthly mortgage statement is negligence"; "Negligence is recording a Notice of Default with [the] wrong amount"; "Negligence is recording a Trustee Sale in a State county Recorders Office with a `FORGERY' signature from the Trustees the Wolf Firm"; "Negligence is being treated badly by customer service representatives"; "Negligence is waiting over 7 years so that the homeowner cannot pay a lump sum"; and "Negligence is where a Notice of Default was recorded without a correct amount and over charging."42 She asserts that certain of Franklin's and Bosco's statements — such as that they maintain close contact and frequently communicate with borrowers — are "1,000% false."43 She also alleges that she called customer service (without identifying which defendant's customer service), that the service representative scolded and talked down to her, and that she cried "after [she] got off the phone."44 And, Ms. Patino asserts that when the Notice of Default was filed, she "was in possession of someone else[`s] loan history sta[t]ing that the amount due was $25,000."45

Ms. Patino's above assertions are conclusory, vague, and confusing, and do not show that any of the defendants went beyond their conventional mortgage financing and servicing roles. Some of her allegations, such as the defendants' failure to send monthly statements, appear based in statute and thus an attempt to establish negligence per se. But as discussed above, these assertions are too vague and ambiguous as to both the statutes supposedly violated and the defendants that violated them. And, in any event, "`an underlying claim of ordinary negligence must be available before [negligence per se] can be employed.'" Winter v. Chevy Chase Bank, No. C 09-3187 SI, 2009 WL 351769, at *3 (N.D. Cal. Oct. 26, 2009) (quoting Cal. Serv. Station and Auto. Repair Ass'n v. Am. Home Assurance Co., 62 Cal.App.4th 1166, 1178 (1998)) (alteration in original). Similarly, she asserts that the customer representative (possibly, "Sindy" of The Wolf Firm)46 acted wrongfully and a defendant (it is unclear which) acted wrongfully by confusing her loan history with another's. Although these acts may demonstrate a lack of care, absent a duty (i.e. an act beyond the institutions' conventional roles), it is legally irrelevant. See Varnado v. Midland Funding LLC, 43 F.Supp.3d 985, 990-91 (N.D. Cal. 2014) (quoting Software Design & Application, Ltd. v. Hoefer & Arnett, Inc., 49 Cal.App.4th 472, 481 (1996)).

In sum, then, Ms. Patino fails to demonstrate that any of the defendants owed her a duty of care. The court therefore dismisses her negligence claims but grants leave to amend.

2.7: Claim 8: Declaratory Relief

Ms. Patino asserts a claim for declaratory relief.47 The federal Declaratory Judgment Act provides that "[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a). To fall within the Act's ambit, the "case of actual controversy" must be "definite and concrete, touching the legal relations of parties having adverse legal interests, . . . real and substantial and admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (internal quotation marks omitted) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937)).

Here, Ms. Patino's claim (properly, a request for remedy) repeats her other various contentions, or what she apparently sees as the parties' disputes — i.e. the legality of recorded documents; the validity of the Notice of Default; the mix up with her and another's loan histories; the identity of the loan's true owner; and the legality of the foreclosure proceedings.48 Because Ms. Patino's substantive claims are vague, ambiguous, and confusing (not definite, concrete, and specific), and because the court dismisses all of Ms. Patino's claims, it dismisses this one, too. She may re-allege her request for declaratory relief if she amends her complaint.

3. Ms. Patino's Other Allegations

Throughout her complaint and her opposition brief, Ms. Patino alludes to various other claims without actually asserting them. For example, she frequently says that the defendants engaged in fraud — i.e. by fraudulently obtaining the loan.49 She also states that she was mentally incapable of contracting and only entered the loan agreement by way of duress (thus, maybe arguing the agreement should be voided).50 And, she appears to touch on rights under the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601 et seq., and the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq. For instance, buried in her negligence claim, she alleges that she sent a "qualified written request which came back that it would be burdensome for defendants to comply with [her] request" — a potential RESPA violation.51 See 12 U.S.C. § 2605(e). She also repeatedly asserts that she rescinded the loan — a potential TILA action.52 See 15 U.S.C. § 1635. Yet she does not actually assert any of these as claims against the defendants.

To the extent Ms. Patino intended to raise these additional claims, the court dismisses them for lack of plausibility; and in the case of her fraud claim, for failure to plead fraud with particularity because she pleads no facts about how the named defendants fraudulently procured the debt (if anything, that claim may more properly be asserted against Cal State 9 Credit Union). Fed. R. Civ. P. 9(b); Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) ("Averments of fraud must be accompanied by `the who, what, when, where, and how' of the misconduct charged.") Ms. Patino may assert these additional claims in her amended complaint, if she chooses to file one. If she does, the court encourages her to make explicit which claims she intends to bring.

4. Leave to Amend

Ms. Patino alleges several new facts in her opposition brief and attached declaration. The court does not consider these facts in ruling on the current motion because, generally, it cannot consider material outside of the complaint. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001); Paulsen v. CNF, Inc., 391 F.Supp.2d 804, 807 (N.D. Cal. 2005) ("[T]he court cannot consider material outside the complaint (e.g., facts presented in briefs, affidavits or discovery materials).") (quoting Schwarzer, Tashima & Wagstaffe, Rutter Group Prac. Guide: Federal Civ. Pro. Before Trial § 9:211 (The Rutter Group 2004) (internal quotations omitted) (alteration in original)). Ms. Patino's new factual allegations, however, and any others that she may wish to include, may give rise to more plausible claims for relief: the court cannot say that amendment would be futile. The court therefore grants Ms. Patino leave to amend all of her claims except for her second (California Penal Code § 115) and sixth ("Statute of Limitations 6 Years") claims.

CONCLUSION

The court grants the defendants' motion and dismisses Ms. Patino's complaint with leave to amend. Her amended complaint is due within 28 days of the date of this order. If Ms. Patino does not file an amended complaint within this time, the court will dismiss the action without prejudice and the Clerk of Court will close the case.

IT IS SO ORDERED.

TABLE OF CONTENTS

INTRODUCTION

This Handbook is designed to help people dealing with civil lawsuits in federal court without legal representation. Proceeding without a lawyer is called proceeding "pro se1," a Latin phrase meaning "for oneself," or sometimes "in propria persona," meaning "in his or her own person." Representing yourself in a lawsuit can be complicated, time consuming, and costly. Failing to follow court procedures can mean losing your case. For these reasons, you are urged to retain a lawyer if possible. Chapter 2 gives suggestions on finding a lawyer.

Do not rely entirely on this Handbook. This Handbook provides a summary of civil lawsuit procedures, but it may not cover all procedures that may apply in your case. It also does not teach you about the points of law that will control your case. Make sure you read the applicable federal and local court rules and do your own research at a law library or online to understand your case.

This Court (the United States District Court for the Northern District of California) has Clerk's Offices in the San Francisco, San Jose and Oakland courthouses. Clerk's Office staff can help you with court procedures, but they cannot give you any legal advice. For example, they cannot help you decide what to do in your lawsuit, tell you what the law means, or even advise you when documents are due.

There are Legal Help Centers in the San Francisco, Oakland and San Jose courthouses where you can get help with your lawsuit from an attorney who can help you prepare documents and give limited legal advice. This attorney will not be your lawyer and you will still be representing yourself. See Chapter 2 for more details.

Tips For Pro Se Litigants

There is a lot to learn in representing yourself in federal court, but here are some key pointers:

CHAPTER 1

WHAT SHOULD I THINK ABOUT BEFORE FILING A LAWSUIT?

To begin a lawsuit, you have to file a complaint, which is a written explanation of your claim with the court. The party who starts a civil lawsuit by filing a complaint is called the plaintiff. The party being sued is the defendant. Both are called litigants, which means parties to a lawsuit. A complaint gives formal notice of your lawsuit to the defendant and the Court.

To Be Heard In This Federal Court, Your Case Has To Meet All Six Of These Requirements:

Some people and organizations cannot be sued. This happens when a person's job entitles him or her to partial or complete immunity. For example, the federal government, state governments, judges and many government officials usually have immunity in civil cases. If federal and state governments have waived immunity to allow some types of suits, but these will be subject to additional rules and procedures, like stricter statutes of limitation. If you try to sue someone who has complete immunity in federal court, your case will be dismissed.

To find out if the person or organization you are suing has immunity, you can:

Have You Explored Alternatives To Suing?

Even if you do have the right to sue, you should carefully consider alternatives to suing. Lawsuits can be costly and stressful and can consume time and attention that might instead be directed to effective alternatives or other priorities and solutions. Some alternatives to bringing a lawsuit include:

Gathering Information

Working Things Out

Going to Governmental or Private Agencies

Using a Small Claims Court

Alternative Dispute Resolution

CHAPTER 2

FINDING A LAWYER

This Handbook is designed to help those without an attorney, but it is no substitute for having your own lawyer. Effective representation requires an understanding of:

1. The law that applies to your case;

2. The court procedures you have to follow;

3. The strengths and weaknesses of your arguments and the other party's arguments.

Not understanding any of the above can result in critical mistakes with serious legal consequences. Because of this, the Court encourages you to find a lawyer, if possible.

How Can I Find A Lawyer? 0 The following resources may be helpful:

What Are The Federal Courthouse Legal Help Centers & How Can They Help Me?

The Court has established Legal Help Centers in the San Francisco, Oakland and San Jose courthouses where people who are representing themselves in federal court cases can get advice from experienced attorneys. There is no fee for this service. Please plan ahead: Consultations with the federal courthouse Legal Help Center are usually by appointment only.

The federal courthouse Legal Help Center attorney can:

If you seek help from the Legal Help Center, you will still represent yourself. The lawyer at the Legal Help Center cannot be your lawyer. If you have tried to find a lawyer but have not found one, the Legal Help Center may be able to help you.

San Francisco Courthouse Legal Help Center:

Oakland Courthouse Legal Help Center:

San Jose Courthouse Legal Help Center:

Please visit the Court's website, cand.uscourts.gov, or call the phone numbers listed above for current office hours, forms and policies for all Legal Help Centers.

What Is "Pro Bono" Representation?

In a limited number of cases, the Court may ask a lawyer to step in for all or part of the case and represent a pro se litigant without charge. Free legal counsel is called pro bono representation. The Court will sometimes appoint pro bono counsel for just part of a case. For example, the Court might appoint pro bono counsel for a settlement conference in which it believes a lawyer could help negotiate a settlement.

For more information about Court appointment of pro bono counsel, see this Court's General Order No. 25 (available at cand.uscourts.gov/generalorders).

CHAPTER 3

HOW DO I RESEARCH THE LAW?

There are two kinds of law that you will need to know to represent yourself: procedural rules and substantive law. The United States Code (abbreviated U.S.C.) contains both, but you may also need to look at state codes and at federal and state judicial opinions or "case law."

Public Law Libraries In The Northern District Of California (By County)

ALAMEDA COUNTY

CONTRA COSTA COUNTY

SAN FRANCISCO COUNTY

CHAPTER 4

HOW DO I DRAFT A COMPLAINT?

The first step in a lawsuit is to file a complaint with the Court. The complaint tells the Court and the defendant how and why you believe the defendant violated the law and injured you. Before you draft your complaint, read Chapter 1, which explains some requirements for a case to proceed in this Court.

What Does A Complaint Look Like?

Formal documents that you submit to the court are called pleadings. A complaint is one type of pleading. Pleadings are written on pleading paper, which is letter-sized paper that has the numbers 1 through 28 running down the left side. You can download a pleading-paper template and complaint forms online at cand.uscourts.goy/Legal-Help-Center-Templates.

What Information Must Be In A Complaint?

Number each page of your complaint and type "Complaint" in the footer at the bottom. Number each paragraph that follows the caption. The complaint should contain all of the following:

Here is a sample complaint caption page:

CHAPTER 5

How DO I FILE PAPERS WITH THE COURT?

Once you have drafted your complaint, you must officially file it with the Court in order to begin your lawsuit.

General Rules For Manual Filing

How Do I File Documents?

How Is Filing A Complaint Different From Other Papers?

What If I Can't Afford The $400.00 Fee For Filing A New Complaint?

If you cannot afford the filing fee, you may file an Application to Proceed In Forma Pauperis ("IFP"). If you are not a prisoner, you can get this form at either the Clerk's Office or at the Court's website (cand.uscourts.gov/civilforms). If you are a prisoner, there is a different form available online (cand.uscourts.gov/prisresources). In both cases, you will have to tell the Court information about your income, your current employment, and your general financial situation. You can find out more information about filing IFP by reading 28 U.S.C. § 1915.

If you are not a prisoner and the Court finds that you cannot afford to pay the filing fee (GRANTS your IFP application), the Court will not require you to pay the filing fee in order to proceed with your lawsuit and may waive other costs. Be cautious: the fee waiver does not necessarily mean you will never have to pay. You may still be obligated to pay later on in your lawsuit.

If the Court DENIES your IFP application, you will be required to pay the fee.

If you are a prisoner and you are unable to pay the full filing fee at the time of filing, you must submit:

If the Court determines that you are unable to pay the full filing fee at the time of filing, you will be granted IFP status. Even if you have complied with § 1915(a) and the Court has granted you IFP status, if you are a prisoner you will still be required to pay the full amount of the filing fee.

Prisoners' filing fees are collected through an installment plan:

While the Court can assess the initial fee even if there are no funds in your account at the time of assessment, the Court can only collect this fee "when funds exist." Your prison trust account office is responsible for forwarding to the Court payments from your account each time there is more than $10.00 in your account, until the entire filing fee is paid.

CHAPTER 6

ONCE MY CASE IS ASSIGNED TO A JUDGE, WHAT DO I DO?

After the complaint is filed and the fee paid, the Clerk assigns a number to the case and assigns the case to a judge. The judge's initials are added to the case number.

District judges are appointed by the President of the United States and confirmed by the United States Senate. District judges are appointed for life and cannot be removed unless impeached.

Magistrate judges are appointed by the district judges of the Court to 8-year terms. They may (and often do) serve more than one term.

Rule 73 of the Federal Rules of Civil Procedure states that a magistrate judge may conduct a civil action, proceeding, trial, or non-jury trial only if all plaintiffs and all defendants consent to have the case decided by a magistrate judge.

If your case is assigned to a magistrate judge, the Clerk's Office will give you a notice explaining that your case has been assigned to a magistrate judge, along with two forms:

It is important that you complete and file with the Court one of these forms indicating whether you consent to have your case decided by a magistrate judge or instead would like your case to be reassigned to a district judge. The magistrate judge may also issue a separate order or send a letter asking you to submit either a consent form or a request for reassignment by a specific date. The federal court Legal Help Centers can help you understand this process (Chapter 2).

If you fail to return either form, the Court will assume that you do not consent to having your case decided by a magistrate judge and will eventually reassign the case to a district judge. You should not wait to complete the form, however, as this may delay your case.

Even if you consent to having your case decided by a magistrate judge, the case may be reassigned to a district judge if another party to the lawsuit does not consent to a magistrate judge. The case may also be reassigned to a district judge if a new plaintiff or defendant is added to the case who does not consent to having a magistrate judge decide the case.

You are not required to consent to a magistrate judge. Regardless of whether you consent to have your case decided by a magistrate judge or request reassignment of your case to a district judge, the rules and procedures used to decide the case will be the same. Once a party has consented, however, that party may not later in the case withdraw consent and request reassignment to a district judge.

Even if a district judge is the assigned judge in your case, he or she may refer parts of the case, such as discovery disputes (discussed in Chapters 16-17), to a magistrate judge for ruling. Some rulings made by the magistrate judge can be appealed to the district judge. See Chapter 20.

A magistrate judge may also be assigned to serve as a settlement judge with the power to set settlement conference dates, order parties to attend settlement conferences, and order the production of documents or other evidence.

CHAPTER 7

HOW CAN I BE SURE I KNOW WHAT IS HAPPENING IN MY CASE?

How Do I Review The Docket?

The docket is a computer file maintained by the Court for each case that includes: (1) the names and addresses of all the attorneys and unrepresented parties AND, (2) in chronological order, the title of every document filed along with the filing date, who filed it and other information.

To prevent mistakes and to ensure that documents are not lost in the mail, you should check the case docket regularly to ensure that:

The federal court Legal Help Centers can help you understand the docket in your case (Chapter 2). You may call or email the publicly-listed courtroom deputy for your judge if you have a specific question after reviewing the docket, such as a question about scheduling. You may call or email the docket clerk with questions about specific documents filed in the case. DO NOT call the judge, the judge's chambers, or the judge's other staff.

Where Can I Access The Electronic Docket?

You may access the electronic docket using the computer terminals available in the San Francisco, Oakland, and San Jose Clerk's Offices during the hours the Clerk's Office is open, or you may do so from any computer with internet access if you have a PACER account.

How Do I Start Viewing Dockets And Court Documents With PACER?

PACER stands for "Public Access to Court Electronic Records." It is a service of the United States Courts. You should sign up for PACER as soon as possible after you become a party to a case in federal court.

If you cannot afford to pay the PACER access fees, you may file a motion with the court asking to be excused from paying the fees. (In forma pauperis status does not automatically grant you free access to PACER). Your motion must show that it would be an unreasonable burden for you to pay the fees and that it would promote public access to electronic court docket information if you were permitted to use the PACER system without paying a fee.

If the Court GRANTS your motion, the Clerk's Office will notify the PACER Service Center; you should call the PACER Service Center at (800) 676-6856 to confirm your registration before you begin accessing dockets and documents.

If the Court DENIES your motion and you still want to use PACER, you can do so without cost as long as you avoid incurring more than the free maximum usage per quarter.

Once case information has been updated in the Northern District's Electronic Case Filing system, it is immediately available on PACER.

If you have problems with your PACER account, please call the PACER Service Center at (800) 676-6856. The Court can help you with ECF questions, but cannot help with problems with your PACER account.

How Do I Review The Case File?

You may come to the Clerk's Office during business hours to view and make copies from the case file, but it is important to note that only manual filings (paper/hard copy documents filed at the Clerk's Office) are placed in the physical court file and that the court is phasing out paper documents altogether in 2015 so there might not be a physical file at all. All other documents are available only via the electronic docket.

After a case is over, physical case files are archived at the Federal Records Center in San Bruno, California. To determine if a case has been archived, contact the Clerk's Office in the location where the case was litigated.

CHAPTER 8

WHAT ARE THE RULES FOR SERVING DOCUMENTS ON OTHER PARTIES IN THE LAWSUIT?

You must give the other parties to your lawsuit a copy of every document that you file with the Court. This is referred to as "serving" or "service on" the other parties. It is critical that you serve your papers to the other parties in exactly the way the law requires. The rules for serving the complaint are different from the rules for serving other documents. If the complaint is not properly served on the defendant, the case will not proceed and can be dismissed by the Court. The federal court Legal Help Centers can help you understand the requirements for serving defendants (Chapter 2).

What Are The Rules For Serving The Complaint?

In order to serve the complaint, you must first get a summons from the Court. You can get a form titled "Summons in a Civil Action" from the Clerk's Office or at the Court's website (cand.uscourts.gov/civilforms). The Clerk must sign, seal, and "issue" the summons to the plaintiff before it can be served on the defendant. If you sue more than one defendant, you can get one summons listing all of the defendants or get a separate summons for each one. See Civil Local Rules 4-1 and 4-2.

Rule 4 of the Federal Rules of Civil Procedure states that the complaint must be served within 90 days after filing, or the Court can dismiss your lawsuit. The rule describes different ways to serve a complaint ("service of process"). The requirements differ based on whether the defendant is a person, a company, a government agency, etc. and where the defendant is located.

Generally, Rule 4(c)(2) of the Federal Rules of Civil Procedure allows any person who is at least 18 years old and NOT A PARTY TO THE CASE to serve a summons and complaint. Under Rule 4(c)(3), the United States Marshals Service will serve a summons and complaint for a plaintiff who has been given permission to proceed in forma pauperis (that is, the Court has found the plaintiff unable to afford the Court's filing fee). You can find more information about proceeding in forma pauperis in Chapter 5 and in 28 U.S.C. § 1915.

How Do I Submit A Summons To The Clerk Of Court For "Issuance"?

After filling out your summons form completely, you must present it to the Clerk for signature and seal before it is valid to serve on the defendants. You can submit a summons form to the Court in person, using the drop box, or by mail, but NOT by fax filing. If you submit a summons form to the Court by mail or by using the drop box, include a self-addressed, stamped envelope so that the Court can return the issued summons to you. For more information, review Rule 4(b) of the Federal Rules of Civil Procedure.

What If I Filed In Forma Pauperis?

If your Application to Proceed in Forma Pauperis is approved, then the Court will issue the summons and forward it to the United States Marshal to serve on the defendants at no cost to you. For more information on how to file an Application to Proceed in Forma Pauperis, see Chapter 5.

How Do I Get A Summons If I Did Not File In Forma Pauperis?

At the time you file your complaint and pay the filing fee, you can obtain as many summonses as you need from the Clerk's Office. You can also obtain the summonses later if you wish.

What Documents Do I Need To Serve On The Defendant(S)?

You are required to serve ALL of the following documents on each defendant:

Is There A Time Limit For Serving The Complaint And Summons?

Yes. Rule 4(m) of the Federal Rules of Civil Procedure requires that you EITHER:

If you do not meet this deadline, the Court may dismiss all claims against any defendant who was not served.

How Can I Get The Defendant To Waive Service?

Waivingservice means agreeing to give up the right to service in person and instead accepting service by mail. If a defendant waives service, you will not have to go to the trouble and/or expense of serving that defendant. If the defendant agrees to waive service, you need the defendant to sign and send back to you a form called a "waiver of service," which you then file with the Court.

You can obtain these forms from the Clerk's Office or download them from the Court's website (cand.uscourts.gov/civilforms).

To request waiver of service, complete and send these two forms to the defendant by first-class mail along with a copy of the complaint, summons, and other required documents, plus an extra copy of the request to waive service and a self-addressed, stamped envelope. In choosing a due date on the form, you must give the defendant a reasonable amount of time to return the waiver of service—at least 30 days from the date the request is sent (or 60 days if the defendant is outside the United States).

If the defendant sends you back the signed waiver of service, you do not need to do anything else to serve that defendant. Just file the defendant's signed waiver of service form with the Court and save a copy for your files.

Review Rule 4(c) & (d) of the Federal Rules of Civil Procedure regarding service and waiver of service.

What If I Requested A Waiver Of Service And The Defendant Doesn't Send It Back?

If the defendant does not return a signed waiver of service by the due date, you need to arrange to serve that defendant in one of the other ways approved by Rule 4 of the Federal Rules of Civil Procedure. You may ask the Court to order the defendant to pay the costs you incurred serving that defendant.

How Do I Serve . . .

Rule 4(c)(2) provides that YOU MAY NOT SERVE THE DEFENDANT YOURSELF. You must have someone else who is at least 18 years old serve the defendant with the complaint and summons. You may hire a professional process server or you can have a friend, family member, or any other person over 18 years old serve the complaint and summons for you. The person should not be a potential party or a potential witness in the case. Following are the rules for serving different kinds of defendants:

Individuals in the United States?

Under Rule 4(e) of the Federal Rules of Civil Procedure, there are several approved ways to serve the complaint, summons, and related documents on an individual in the United States:

• Hand delivery to the defendant; OR

• Hand delivery to another responsible person who lives at the defendant's home; OR

• Hand delivery to an agent authorized by the defendant or by law to receive service of process for the defendant; OR

• Service by any other method approved by California law or the laws of the state where the defendant is served. California law on service of process can be found in the California Code of Civil Procedure beginning at § 413.10. California law generally allows service by:

Individuals in foreign countries?

Under Rule 4(f) of the Federal Rules of Civil Procedure, an individual in a foreign country may be served by "any internationally agreed means that is reasonably calculated to give notice," or, if there is none, using methods prescribed by the foreign country's law or government, hand delivery, certified mail delivery or in the manner the Court orders.

A business?

The United States, its agencies, corporations, officers, or employees?

Rule 4(i) of the Federal Rules of Civil Procedure specifies the approved ways to serve the complaint, summons, and related documents on the United States government or its agencies, corporations, officers, or employees.

Rule 4(g) of the Federal Rules of Civil Procedure provides that service on a minor or incompetent person in the United States must be made according to the law of the state where the person is served. California law for service of process on minors and incompetent persons can be found at California Code of Civil Procedure §§ 416.60 & 416.70.

Read 28 U.S.C. § 1608 for information on serving foreign governmental entities.

What Is A Certificate Of Service?

After you serve the complaint, you are required to file a "certificate of service" (also called a "proof of service)" with the Court that shows when and how you served the complaint, summons and other required documents on each defendant. The certificate of service allows the Court to determine whether service met legal requirements. It MUST contain:

For example, if you hired a process server, the certificate of service must be signed by the process server. The person who served the documents must swear under penalty of perjury that the statements in the certificate of service are true. See Federal Rule of Civil Procedure 5(d) and Civil Local Rule 5-6.

What Are The Rules For Service Of Documents Other Than The Complaint?

Rule 5 of the Federal Rules of Civil Procedure sets the rules for serving documents other than the original complaint. If the party you served has a lawyer, then you MUST serve that party's lawyer. If the other party does not have a lawyer, you must serve the party.

Rule 5 allows you to serve documents using any ONE of the following methods:

CHAPTER 9

FILING AND SERVING DOCUMENTS ELECTRONICALLY

After the complaint is filed and the case is opened, the docket and all documents in the case are maintained in an electronic format so that they can be viewed on a computer. Attorneys are required to file documents electronically. Parties representing themselves are not required to e-file, but many choose to do so (see "What are the pros and cons of e-filing?" below). The judge in your case must give permission for you to register for e-filing.

What Are The Technical Requirements For E-Filing?

In order to fulfill the technical requirements for e-filing, you must have access to:

What Are The Pros And Cons Of E-Filing?

If you need assistance obtaining permission to e-file, you may ask the federal courthouse Legal Help Center (Chapter 2).

How Do I Start E-Filing With ECF?

To begin e-filing, you must first file a motion for permission to e-file with the Court. View or download a sample motion for permission to e-file from the Court's website: cand.uscourts.gov/Legal-Helq-Center-Templates. Once the judge's order granting permission has been entered on the docket, you can register with ECF (the Court's Electronic Case Filing system) to get a login and password. There are no registration costs and no fees for e-filing. Your registration process will be different from that for attorneys.

In order to use ECF, you will also have to register with PACER (the Public Access to Court Electronic Records system of the United States Courts), if you have not already done so. ECF allows you to submit documents to the Court electronically. PACER allows you to retrieve documents from the Court. PACER registration is covered in Chapter 7.

Register to become an ECF user by visiting the Court's website and following the instructions on the special registration page for pro se litigants: cand.uscourts.gov/ECF/Droseregistration. Do not attempt to use the registration process provided for attorneys and members of the media.

Important E-Filing Tips

CHAPTER 10

How DO I RESPOND TO A COMPLAINT?

When you are served with a complaint and summons, you become a defendant in a lawsuit. You will be required to file a written response with the Court. Under Rule 12 of the Federal Rules of Civil Procedure, there are two general ways to respond. You can:

It is very important that you respond to the complaint by the deadline, or else the plaintiff can seek a default judgment against you, which means that the plaintiff can win the case and collect a judgment against you without ever having the Court consider the claims in the complaint. See Rule 55 of the Federal Rules of Civil Procedure and the section titled "What does it mean to win by default judgment?" If you need assistance responding to a lawsuit, you can visit the federal courthouse Legal Help Centers for advice (Chapter 2).

How Much Time Do I Have To Respond To The Complaint?

Generally, the summons will specify how much time you have to respond. The time you have to file a response to a complaint depends on who you are and how you were served. These are covered in the Federal Rules of Civil Procedure. See the table below.

If you need additional time to respond to the complaint, you can ask the plaintiff to agree to extend the deadline for responding as long as the new deadline does not interfere with any dates or deadlines set by the Court. Once the parties file a written agreement to extend the deadline, it becomes effective automatically. You do not need to receive the Court's approval. See Civil Local Rule 6-1.

How Do I Prepare An Answer To A Complaint?

An answer "on the merits" challenges the complaint's factual accuracy or the plaintiff's legal entitlement to relief based on the facts set forth in the complaint. The format of your answer must track the format of the complaint. It should include a numbered response to each numbered paragraph of the plaintiff's complaint. Rule 8(b)(1) of the Federal Rules of Civil Procedure governs answers. A sample "answer packet" is available on the Court's website at cand.uscourts.gov/Legal-Help-Center-Templates. There are several requirements to consider:

Can I Make Claims Against The Plaintiff In My Answer?

You may not assert claims against the plaintiff in the answer. In order to assert claims against the plaintiff, you must file a counterclaim. You may, however, include the counterclaim after your answer and file both as a single document. Certain types of counterclaims must be filed at the same time the answer is filed or they are considered waived and cannot be raised later, according to Rule 13(a) of the Federal Rules of Civil Procedure. See the section "How do I file a counterclaim?" below.

Can I Amend The Answer After I File It?

If LESS THAN 21 days has passed since you served the answer:

You can amend your answer anytime within 21 days after it is served on the plaintiff without the need for permission from the Court or from the plaintiff. See Rule 15(a)(1) of the Federal Rules of Civil Procedure,

If MORE THAN 21 days has passed since you served the answer:

There are two ways to amend your answer even after 21 days have passed since your answer was served on the plaintiff:

If you file an amended answer, Civil Local Rule 10-1 requires you to file an entirely new answer and not simply the changes you made to the original. The caption for your amended answer should read "FIRST AMENDED ANSWER," and if you have included a counterclaim, it should read "FIRST AMENDED ANSWER AND COUNTERCLAIM."

Once The Answer Is Filed, Does The Plaintiff Have To File A Response To It?

No. Under Rule 8(b)(6) of the Federal Rules of Civil Procedure, all statements in an answer are automatically denied by the other parties to the lawsuit.

How Do I File A Counterclaim?

A defendant can bring a complaint against the plaintiff by filing a counterclaim. Rule 13 of the Federal Rules of Civil Procedure covers two different types of counterclaims:

Counterclaims should be written using the same format and rules as a complaint. If you file your counterclaim at the same time you file your answer, you can include the answer and counterclaim on the same or separate documents. If combined in one document, the title should read "ANSWER AND COUNTERCLAIM." A sample counterclaim is included in the "answer packet," available on the Court's website at cand.uscourts.gov/Legal-Help-Center-Templates.

Once A Counterclaim Is Filed, Does The Plaintiff Have To File A Response To It?

Since a counterclaim is really a complaint against the plaintiff, the plaintiff must file a written response to it. The response to a counterclaim is called a redly. Rule 12(a)(1)(B) requires the plaintiff to file a reply to a counterclaim within 21 days of being served, unless the plaintiff files a motion regarding the reply.

What If I Want To Sue A New Party?

A crossclaim brings a new party into the case and essentially blames that third party for any harm that the plaintiff has suffered. A crossclaim can also be used by a plaintiff against a co-plaintiff or by a defendant against a co-defendant. Like a compulsory counterclaim, a crossclaim must be based on the same series of events as the original complaint. Crossclaims are covered by Rule 13(g)&(h) of the Federal Rules of Civil Procedure. A sample crossclaim is included in the "answer packet," available on the Court's website at cand.uscourts.gov/Legal-HeID-Center-Templates.

How Can I Use A Motion To Challenge The Complaint?

Once you are served with a complaint, you have a limited amount of time to file a written response to the complaint. You will eventually need to file an answer (unless the case is dismissed), but you initially may have the option to challenge the complaint by filing one of the motions specified in Rule 12 of the Federal Rules of Civil Procedure instead of an answer. If you file a Rule 12 motion, you will not need to file your answer until after the Court decides your motion.

To learn more about how to file a motion, see Chapter 11 on "What is a motion and how do I write or respond to one?" You can also find instructions and a sample form at cand.uscourts.gov/Legal-HeID-Center-Templates.

About Motions To Dismiss

A motion to dismiss the complaint argues that there are technical problems with the way the complaint was written, filed, or served. Rule 12(b) of the Federal Rules of Civil Procedure lists the following defenses that can be raised in a motion to dismiss the complaint or any individual claim:

If the Court DENIES a motion to dismiss, the defendant must file an answer within 14 days after receiving notice that the Court denied the motion. See Rule 12(a)(4) of the Federal Rules of Civil Procedure. If the Court GRANTS the motion to dismiss, it can grant the motion with "leave to amend" or "with prejudice," as explained below:

About Motions For A More Definite Statement

Under Rule 12(e), the defendant argues in a motion fora more definite statement that the complaint is so vague, ambiguous or confusing that the defendant is unable to answer it. The motion must identify the confusing portions of the complaint and ask for the details needed to respond to it. A motion for a more definite statement must be made before a responsive pleading (usually an answer) is filed.

: If the Court GRANTS a motion for a more definite statement, the plaintiff is given an opportunity to file a new complaint. The defendant then must file a written response to the complaint within 14 days after receiving it.Rule 12(a)(4)(B). The written response can be either an answer or another motion.

If the Court DENIES the motion for a more definite statement, then the defendant must file a written response to the complaint within 14 days after receiving notice of the Court's order.

About Motions To Strike

Rule 12(f)(2) permits the defendant to file a motion to strike from the complaint any "redundant, immaterial, impertinent, or scandalous matter." This can be used to attack portions of the complaint rather than the entire complaint or even entire claims.

What Is A Default Judgment And How Does A Plaintiff Obtain One?

If a defendant has been properly served with a complaint but fails to file any response in the required amount of time, then that defendant is considered in "default" Once the defendant is in default, the plaintiff can ask the Court for a default judgment, which means that the plaintiff wins the case and may take steps to collect on the judgment against that defendant. Rule 55 of the Federal Rules of Civil Procedure provides for a two-step process that applies in most cases:

Special rules apply if the plaintiff seeks a default judgment against any of the following parties:

The defendant should file a response and appear at the hearing if at all possible. The defendant usually opposes a motion for default judgment by challenging the sufficiency of service of the complaint, but can also argue that the facts stated do not amount to a violation of the law or that the amount of damages claimed by the plaintiff is incorrect. In general, the Court will not enter a default judgment if an alternative exists because it can be very unfair to the defendant.

Obtaining Relief From A Default Or Default Judgment

A defendant against whom default or a default judgment has been entered may make a motion to set aside the default or default judgment. See Rule 55(c) of the Federal Rules of Civil Procedure. The Court will set aside an entry of default or a default judgment for good cause or for a reason listed in Rule 60(b) such as mistake, fraud, newly-discovered evidence, the judgment is void or "any other reason that justifies relief."

In either case, the motion must explain in detail your reasons for failing to respond to the complaint. To learn about the requirements for motions, see Chapter 11. If a default or default judgment has been entered against you, you can seek legal advice from the federal courthouse Legal Help Centers (Chapter 2).

CHAPTER 11

WHAT IS A MOTION AND HOW DO I MAKE OR RESPOND TO ONE?

A motion is a formal request you make to the judge for some sort of action in your case. Most motions are brought by parties, but certain motions can be brought by non-parties.

In general, you do not need a motion for clerical things like changing your address on the docket or requesting copies.

Here are some common motions that may be filed at any point in a civil case:

Here are some specialized motions that are filed at specific phases of a civil case: In connection with filing a complaint:

What Is The Timeline Of A Motion?

What Are The Requirements For Motion Papers?

How Do I Choose A Hearing Date?

How Do I Oppose (Or Not Oppose) A Motion?

What If I Need More Time To Respond To A Motion?

Rule 6(b) of the Federal Rules of Civil Procedure allows the Court to give you extra time to respond to a motion only for a good reason. If you make the request before the original deadline passes, the Court can grant extra time with or without a motion or notice to the other parties. If you wait until after the original deadline passes before asking for extra time, you must make a motion and show that a good reason for missing the deadline.

You can also file a stipulation to extend time, under Civil Local Rules 6-1(b) and 6-2. The same rules for stipulations to shorten time also apply to stipulations to extend time, with one exception: a stipulation to extend time that affects a hearing or other proceeding that has already been scheduled on the Court's calendar must be filed no later than 10 days before the scheduled event.

You can also file a motion to extend tim under Civil Local Rule 6-3. The requirements are similar to those for motions to shorten time.

What Are The Requirements For Reply Briefs?

What If The Motion Is Urgent And Needs To Be Decided In Less Than 35 Days?

Sometimes a motion raises an urgent issue that needs to be decided very quickly. There are three ways in which to get a hearing date that is less than 35 days from the day your motion is filed.

The opposition to a motion to shorten time must be filed no later than the third court day after the motion is received, unless the Court sets another schedule. The opposition must be no longer than five pages and must be accompanied by a declaration explaining the basis for the opposition. The objecting party must deliver a copy of its opposition brief to all other parties on the day the opposition is filed (unless the motion is e-filed).

There is no reply brief on a motion to shorten time.

The Court may grant, deny, or modify the requested time change or schedule the motion for additional briefing or a hearing. It is rare for a hearing to be held on motions of this kind.

CHAPTER 12

WHAT HAPPENS AT A COURT HEARING?

What Is A Hearing?

A hearin is a formal court proceeding in which the parties present their arguments to the judge and answer the judge's questions about the motion or other matter being heard. Sometimes witnesses can be presented at these hearings.

IMPORTANT: Many judges choose to cancel or "vacate" scheduled hearings the motions on their calendars. The judges may have enough information from the papers filed by the parties and will decide cases "on the papers" While a hearing date is required when a motion is filed, there will not necessarily be a hearing on a particular motion.

How Do I Prepare For A Hearing?

How Should I Dress And Behave At A Hearing?

How Is A Courtroom Arranged And Where Do I Fit In?

The bench is a large desk where the judge sits in the front of the courtroom.

The witness box is the seat next to the bench where witnesses sit when they testify.

The court reporter is the person seated in front of and below the bench writing on a special machine. The court reporter makes a record of everything that is said at the hearing.

The courtroom deputy assists the judge. If you need to show a document to the judge during a hearing, you should hand the document to the courtroom deputy, who will then hand it to the judge. You will often be asked to check in with the courtroom deputy before the judge comes into the courtroom.

In the center of the courtroom in front of the bench is a lectern (sometimes referred to as a "podium") with a microphone. This is where a lawyer or pro se party stands when speaking to the judge.

The jury box is located against the wall, at one side of the courtroom. This is where jurors sit during a trial. During a hearing, court staff members may be sitting in the jury box.

In the center of the courtroom, there will be plaintiffs' and defendants' tables with a number of chairs around them. This is where the lawyers and the parties sit during hearings and trials. The plaintiffs sit at the table that is closest to the jury box. The defendants sit at the table next to the plaintiffs.

There are several rows of benches in the back of the courtroom, where anyone can sit and watch the hearing or trial.

What Happens At A Motion Hearing?

First, the party who filed the motion has a chance to argue why the motion should be granted. Then, the opposing party will argue why the motion should be denied. Finally, the party who filed the motion has an opportunity to explain why he or she believes the opposing party's argument is wrong.

Points to remember for the hearing:

General Advice For Hearings

Be sure to have a pen and paper with you so that you can take notes.

When your hearing is over, you should either leave the courtroom or return to one of the benches in the back of the courtroom to watch the rest of the hearings.

If you need to discuss something with opposing counsel before or after your hearing, you must leave the courtroom and discuss the matter in the hallway.

CHAPTER 13

INITIAL DISCLOSURES: WHAT ARE THEY AND WHEN DO THEY HAPPEN?

Before the parties begin discovery (the formal process of information exchange governed by certain procedural rules covered in Chapter 16), they are required to hand over to each other certain types of information. This is called an "initial disclosure." Federal Rule of Civil Procedure 26(a) lists three types of disclosures which you must provide to the other parties at different times during the course of the lawsuit: initial disclosures, expert disclosures, and pretrial disclosures.Expert disclosures and pretrial disclosures are covered in Chapter 19, "What happens at trial?"

Initial disclosures, covered in detail in Rule 26(a)(1), are required in all civil cases except those listed in Rule 26(a)(1)(B), such as: actions for review of administrative agency action (like social security appeals), petitions for habeas corpus, actions brought by pro se prisoners and actions to enforce arbitration awards. In all other types of cases, you will have to serve initial disclosures on the other parties early in the case. Even though you may not yet have fully investigated the case, you are REQUIRED to make initial disclosures based on the best information available to you.

Make sure that you know the date by which you have to serve the initial disclosure. You can download an "Initial Disclosures" packet at cand.uscourts.gov/Legal-Help-Center-Templates. You can also seek help with your initial disclosures from the federal courthouse Legal Help Centers (Chapter 2).

CHAPTER 14

WHAT IS A CASE MANAGEMENT CONFERENCE AND HOW DO I PREPARE FOR IT?

A case management conference (often called by its abbreviation, "CMC") is scheduled upon the filing of every case. Its purpose is for the judge and the parties to set a schedule for the case. No issues or claims are decided at the case management conference, but it is a very important event in a new civil case. For more information on preparing for a case management conference, you may contact the federal courthouse Legal Help Centers (Chapter 2).

A status conference or further case management conference is a subsequent case management conference that the judge holds to check in with the parties about the status of the case. It is a chance for the parties to tell the judge about the progress of their case and any problems they have had in preparing for trial or in meeting the original schedule. See Civil Local Rule 16-10(c).

A pretrial conferenceis held shortly before trial at which the judge and the parties discuss the procedures for the upcoming trial.

When Is The Initial Case Management Conference?

Under Civil Local Rule 16-2(a), the plaintiff is given a copy of an Order Setting Initial Case Management Conference when the complaint is filed. The plaintiff serves this order on the defendants along with the complaint and summons. The order sets the date for the initial case management conference, which is usually held about 90 days after the complaint is filed.

Does Every Case Have A Case Management Conference?

No. Certain types of cases — listed in Civil Local Rules 16-4, 16-5, 16-6 & 16-7 — do not have CMCs, including social security appeals, bankruptcy appeals, student loan cases and prisoner petitions.

What Should I Do Before The Initial Case Management Conference?

Parties are expected to "meet and confer" — that is, talk by phone or in person to try to agree on a number of issues, including:

Civil Local Rules 16-1-16-10 and Rules 16(b) & 26(f) of the Federal Rules of Civil Procedure contain detailed rules about CMCs. A uniform standing order for all judges in this Court specifies in detail what must be included in the case management statement It is included among each judge's standing orders on the Court's website. A fillable form for the case management statement can be downloaded from this pro se litigant resources page of the Court's website: cand.uscourts.gov/Legal-Help-Center-Templates.

Why Do I Have To Meet And Confer?

The meet-and-confer process saves time by requiring the parties to agree on as much as possible and to understand each other's positions. Under Rule 26(f) of the Federal Rules of Civil Procedure, unless the case is in one of the categories listed in Rule 26(a)(1)(B), all parties MUST meet and confer at least 21 days before the case management conference.

What Is The Case Management Statement?

Civil Local Rule 16-9 allows the parties to file separate case management statementsif one party does not have a lawyer. Many judges, however, prefer that parties file a single joint case management statement tement together on the form approved by the Court, so it is recommended that you contact the other party or parties about filing a joint statement well ahead of the deadline.

A sample case management statement form can be found on the Court's website at cand.uSCOurts.gov/civilformS ("CASE MANAGEMENT STATEMENT PACKET").

The case management statement(s) must be filed no later than 7 days before the case management conference, unless the judge orders otherwise. See Civil Local Rule 16-9 & Rule 26(f) of the Federal Rules of Civil Procedure.

What Is The Proposed Discovery Plan?

The proposed discovery plan is a proposal that the parties make to the judge about how each party thinks discovery should be conducted in the case. Discovery is covered in detail in Chapter 16. The judge will review the plan and determine how discovery will proceed and include this in the case management order.

The parties must make a good faith effort to agree on a joint proposed discovery plan, which should include each party's views and proposals about:

What Happens At The Initial Case Management Conference?

The judge will ask about the issues in the case management statement and other issues that may have arisen. The judge is also likely to ask about the form of Alternative Dispute Resolution (often called "ADR" and discussed in Chapter 15) most appropriate for your case. You must attend the case management conference in person, unless you file a written request to participate in the conference by telephone. Requests to participate by telephone must be filed and served no later than five days before the conference or at the time stated in your judge's standing order. See Civil Local Rule 16-10(a). Be prepared to discuss all aspects of your case with the judge.

What Is The Case Management Order?

During or after the case management conference, the judge will issue a case management order,which will set a schedule for the rest of the case. The CMC order will govern the case unless and until it is changed later by the judge.

What Should I Do To Prepare For Other Conferences With The Judge?

If the judge schedules a subsequent case management conference, Civil Local Rule 16-10(d) requires the parties to file a supplemental case management statement at least 7 days before the conference. The joint statement must report:

Your judge's standing order may contain additional requirements as well, so be sure to re-read it before each court appearance. You must attend the subsequent case management conference in person, unless the judge permits you to appear by telephone. Be prepared to discuss all aspects of the case with the judge.

CHAPTER 15

WHAT IS ALTERNATIVE DISPUTE RESOLUTION (ADR)?

It is the mission of the Court to do everything it can to help parties resolve their disputes as fairly, quickly and efficiently as possible. Alternative Dispute Resolution (ADR) can save time and money by helping parties work out their differences without formal litigation. ADR also can lead to resolutions that are more creative and better tailored to the parties' underlying interests.

The cases filed in our Court present a broad range of issues and circumstances. The Court offers a wide selection of non-binding ADR options — each of which provides a different kind of service — so that parties can use the procedure that best fits the particular circumstances of their case.

Most civil cases are assigned at filing to the ADR Multi-Option Program (ADRMOP) governed by ADR Local Rule 3. This assignment is included in the Initial Case Management Scheduling Order entered right after the case is first assigned to a judge. In the ADRMOP, unless the assigned judge orders otherwise, the parties must participate in one non-binding ADR process offered by the Court or, with the assigned judge's permission, in an ADR process offered by a private provider.

Each party MUST:

Each party must then certify that it has complied with these requirements by filing an ADR Certificationby the date specified in the Initial Case Management Scheduling Order. See ADR Local Rule 3-5(b). If the parties can agree on an ADR process, they must file a Stipulation and Proposed Order Selecting ADR Process with their ADR Certification. If the parties are unable to reach an agreement about which ADR process might work best for the case, they must file, along with their ADR Certification, a Notice of Need for ADR Phone Conference; the Court's ADR staff will then schedule a telephone conference with an ADR legal staff member who will help the parties select an ADR process. All ADR forms are available at cand.uscourts.gov/adrforms.

If the parties have not stipulated to an ADR process before their case management conference, they will discuss ADR with the judge who may refer them to one of the Court's ADR processes. See ADR Local Rule 3-5(c)(2) for more information.

The Court sponsors four major ADR processes, which are explained more fully in the "Dispute Resolution Procedures in the Northern District of California" pamphlet:

The Court encourages using one or more ADR processes in any civil case, at any time. The Court's professional ADR staff, which includes attorneys with expertise in ADR procedures, is available to help you select a suitable option or to customize an ADR procedure to meet your needs. Our ADR processes, which are governed by the Court's ADR Local Rules, are available even if your case is not assigned to the ADRMOP at filing. We have committed substantial resources to our ADR programs because we are confident that litigants who use them can save significant time and money and will often obtain more satisfying results.

View and/or download more information, forms or a copy of the ADR pamphlet or the ADR Local Rules, at cand.uscourts.gov/adr. You can also seek help with understanding ADR options from the federal courthouse Legal Help Centers (Chapter 2).

CHAPTER 16

WHAT IS DISCOVERY?

"Discovery" is the process in which a party finds out information about the issues in his or her case before the trial. There are six ways to ask for and receive this information: depositions, interrogatories, requests for production of documents and/or other items, request for admissions, mental examinations, and physical examinations.

You may use the methods of discovery in any order or at the same time. What methods the other party uses does not determine what methods you may use. To learn more about discovery or to get samples, you may contact the federal courthouse Legal Help Centers (Chapter 2).

When Can Discovery Begin?

If your case is listed under Rule 26(a)(1)(B) of the Federal Rules of Civil Procedure, Civil Local Rule 16-7 states that discovery cannot begin until the judge sends out a case management order setting deadlines for discovery. Such cases include: actions for review of administrative agency action (like social security appeals), petitions for habeas corpus, actions brought by pro se prisoners and actions to enforce arbitration awards.

In ALL other cases, Rule 26(d) of the Federal Rules of Civil Procedure states that discovery cannot begin until the parties have had their Rule 26(f) meet and confer, UNLESS:

As noted above, all parties may conduct discovery at the same time.

What Are The Limits On Discovery?

There are also limits to how many requests you can make, discussed below. Rule 26(b) covers discovery scope and limits in detail.

Depositions

A depositionis a question-and-answer session that takes place outside of Court but is recorded by a court reporter. Rule 30 of the Federal Rules of Civil Procedure covers depositions in detail. One party to a lawsuit asks another person — either a party or a witness — who is under oath, questions about the issues raised in the lawsuit. The person answering the questions under oath is the "deponent" The deponent can be any person who may have information about the lawsuit, including eye witnesses, expert witnesses, or other parties to the lawsuit. A deposition may also be taken by telephone or by written questions. At a deposition:

Do I need the Court's permission to take a deposition?

Usually, you do not need the Court's permission to take a deposition EXCEPT in the following situations:

How do I arrange a deposition?

Under Civil Local Rule 30-1:

What do I include in a notice of deposition?

Under Rule 30(b) and 26(g)(1) of the Federal Rules of Civil Procedure, the notice of depositionmust include:

When do I need to use a subpoena for a deposition?

Under Rule 45 of the Federal Rules of Civil Procedure:

What does it mean if the deponent files a motion for the Court to quash the subpoena?

To quash a subpoena is to issue an order that the person does not have to obey the subpoena or appear at the deposition. The Court may quash a subpoena if there is undue burden or expense required for the deponent to appear at the deposition. The Court must quash a subpoena if it requires a non-party deponent to travel more than 100 miles to the deposition. See Rule 45(c)(1).

I've been served with a deposition subpoena; what do I do?

The other party will set a date, time, and place for your deposition and send you this information in a deposition notice or subpoena. As a party to a lawsuit, you are required to appear at a deposition in response to either a deposition notice or subpoena.

If the other side has set a date that is inconvenient for you, it is important that you contact them right away and suggest another date for the deposition. It is usually best to send a letter or email confirming any agreement that you reach with the other side in order to avoid later misunderstandings.

What can I do to prepare to have my deposition taken?

Depositions are very important because the transcript of your answers can be submitted as evidence to the Court. Answers you give in a deposition can have the same effect as if you had given those answers under oath in front of the judge. You may contact the federal courthouse Legal Help Centers (Chapter 2) for general advice on preparing for your deposition. Here are some practical tips for helping your deposition go smoothly:

What is a "subpoena duces tecum" and why would I need one?

A subpoena duces tecum is a court order requiring someone to provide copies of papers, books or other things. It is a discovery tool that can be used with a deposition or by itself. Under Rule 30(b)(2), the documents you want the deponent to bring to the deposition must be listed in both the "notice of deposition" and the "subpoena ducestecum."

How long can a deposition last?

Under Rule 30(d)(1) of the Federal Rules of Civil Procedure, a deposition may last no longer than 1 day of seven hours, unless more time is authorized by all parties or the Court.

Does the deponent have to answer all questions?

Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, you may ask questions about any nonprivileged matter that is relevant to the claim or defense of any party and appears reasonably likely to lead to the discovery of admissible evidence.

Under Rule 30(c), the deponent is entitled to state any legal objections he or she has to any question. Certain types of objections are considered proper, such as:

In most of these cases, however, the deponent must still answer the question, after making the objection. Under Rule 30(c)(2), the deponent may refuse to answer a question only when:

Who is allowed to ask the deponent questions?

Any party may ask questions at the deposition.

Can the deponent change his or her deposition testimony after the deposition?

Under Rule 30(e) of the Federal Rules of Civil Procedure, the deponent has 30 days from the time the deposition transcript is complete to review the deposition and make changes. The deponent must sign a statement listing the changes and the reasons for making them.

Interrogatories

Interrogatories are written questions sent by one party to any other party to the lawsuit and must be answered in writing and under oath. Rule 33 of the Federal Rules of Civil Procedure covers interrogatories in detail. To learn more about interrogatories, you may contact the federal courthouse Legal Help Centers (Chapter 2). A sample to request interrogatories is available at cand.uscourts.gov/Legal-Helo-Center-Templates.

Do I need the Court's permission to serve interrogatories?

Under Rule 33(a), you may serve up to 25 interrogatories, including all subparts, on the same party without the Court's permission. If you want to serve more than 25 on one party, you must file a motion asking the Court's permission. See Civil Local Rule 33-3.

What kinds of questions can I ask?

Consistent with Rule 26(b)(1) of the Federal Rules of Civil Procedure, parties may use interrogatories to ask about any non-privileged matter that is relevant to any party's claim or defense.

Are there any requirements for the form of interrogatories?

Usually each interrogatory is written out with a separate number. Interrogatories must be signed in accordance with Rule 26(g)(1).

How do I answer interrogatories?

Request For Document Production

In a request for production of documents you can ask the other side for documents which you need to prove or defend your case. These should be documents which you reasonably believe the other side has and contains would information about the issues in the lawsuit. Document requests can be served on any person, not just parties to the lawsuit. To learn more about request for production of documents, you may contact the federal courthouse Legal Help Centers (Chapter 2). A sample request for production of documents, is available at cand.uscourts.gov/Legal-HeID-Center-Templates.

How do I get documents from the other parties?

If the person who has the documents you want is a party to the lawsuit, you must follow Rules 34(a) and (b). Under Rule 34(a) any party can serve another party:

The request must list the items that you want to inspect and describe each one in enough detail that it is reasonably easy for the other party to figure out what you want. It must also specify a reasonable time, place and manner for the inspection.

Each request for document production should be numbered separately and signed in accordance with Rule 26(g)(1). There is no limit to the number of requests, as long as they are not unreasonable or unduly burdensome. A request for document production from a party to the lawsuit may be served by any of the methods listed in Rule 5(b) of the Federal Rules of Civil Procedure.

How do I respond to a request for document production?

How do I get documents from persons who are not parties?

Rules 34(c) and 45 cover obtaining documents from persons not party to the lawsuit. Under Rule 34(c), you can ask the Court to compel a person who is not a party to the lawsuit to produce documents and items or submit to an inspection.

Rule 45 sets out the rules for issuing, serving, protesting, and responding to subpoenas, including subpoenas duces tecum, subpoenas requesting the production of documents and items.

The same form is used both for a subpoena duces tecum and a deposition subpoena. If you want a nonparty to produce documents at deposition, you can fill out just one subpoena form directing the person to appear at the deposition and to bring along specific documents to the deposition. You can also serve a deposition subpoena and a subpoena duces tecum separately so that the deponent will appear for a deposition at one time and produce documents at a different time.

You can get a blank subpoena form from the Clerk's Office or online at cand.uscourts.gov/civilforms for any production of documents or inspection that will occur in the Northern District of California. If the document or item is located outside our district, you will need to get the subpoena from the Court in the corresponding district.

A. subpoena duces tecum may be served by any of the methods listed in Rule 5(b), including service by mail. You must take steps to avoid imposing an undue burden or expense on the person receiving the subpoena. See Rules 45(b)(1)&(c)(1) of the Federal Rules of Civil Procedure.

What kind of response can I expect if I serve a subpoena duces tecum?

The person who has been served with a subpoena duces tecumhas 14 days to serve written objections (less if the time required for production or inspection is less than 14 days). If an objection is made, the parties should meet and confer to try to resolve the issue. If the objection cannot be resolved through agreement, the party serving the subpoena will need to seek a court order before being allowed to inspect or copy any of the materials requested in the subpoena. Rule 45(d)(2)(B).

The person served with the subpoena duces tecum does not have to appear in person at the time and place for the production of documents for inspection unless he or she also has been subpoenaed to appear for a deposition, hearing, or trial at the same time or place. Rule 45(d)(2)(A).

Requests For Admission

In a request for admission, one party asks, in writing, the other party to admit the truthfulness, for purposes of the lawsuit, of:

Requests for admission can only be used on other parties to the lawsuit.

The Court will consider anything admitted in response to a request for admission as proven.

Rule 36 of the Federal Rules of Civil Procedure governs requests for admission. Requests for admission may be served by any of the methods listed in Rule 5(b) of the Federal Rules of Civil Procedure, including service by mail.

Like depositions and interrogatories, requests for admission must be stated separately and numbered in order. They must also be signed and certified in accordance with Rule 26(g)(1).

There is no limit to the number of requests for admission that you may serve, as long as they are not unreasonable, unduly burdensome, or expensive.

Civil Local Rule 36-1 provides that responses to requests for admission must state each request in full before each response or objection. If a party objects to a request for admission, then that party must state their reasons for objection. Responses to requests for admission must be signed by the party or by the party's attorney.

The party who receives a request for admission has 30 days to respond under Rule 36(a) of the Federal Rules of Civil Procedure. That time can be increased or decreased if the parties agree or by court order. If no response is served within 30 days (or the time otherwise set by agreement or by the Court), all of the requests for admission are automatically considered admitted. To learn more about request for admissions, you may contact the federal courthouse Legal Help Centers (Chapter 2).

How do I respond to a request for admission?

What if I do not want to admit to the truth of a request for admission?

If a party fails to admit to a fact which is later proven true, the requesting party may file a motion with the Court seeking compensation in the form of expenses, including attorney fees, that were accrued in the process of proving that fact. See Rule 37(c)(2) of the Federal Rules of Civil Procedure. The Court MUST grant the motion unless it finds that:

Duty to supplement responses

If a party discovers that the responses that party has already submitted are incomplete or incorrect, then that party is required under Rule 26(e)(1) of the Federal Rules of Civil Procedure to supplement the earlier responses promptly.

Physical Or Mental Examinations

When the mental or physical condition of a party, or a person under the custody or legal control of a party, is at issue in a lawsuit, Rule 35 of the Federal Rules of Civil Procedure allows the Court to order that person to submit to a physical or mental examination. The examination must be done by a suitably licensed or certified examiner and the party who requested the examination must pay the examiner. The examiner is not responsible for treating the person and any communications with the examiner are NOT confidential.

Unlike other discovery procedures, physical or mental examinations can be obtained only by filing a motion with the Court or by agreement of the parties. If a motion is filed, it musT:

What happens to the result of the examination?

If the Court orders a mental or physical examination, the party or other person who is to be examined has the right to request a detailed written report from the examiner explaining the results of all exams.

Because a mental or physical examination may raise unforeseen issues the party that has obtained the examination may need to ask for other related information, such as medical records. The parties may request from each other similar reports of other examinations that they may possess.

If an examiner does not produce a report, the Court can exclude the examiner's testimony at trial.

These requirements apply to both court ordered reports and reports agreed to by both parties.

CHAPTER 17

WHAT CAN I DO IF THERE ARE PROBLEMS WITH DISCLOSURES OR DISCOVERY?

What Is The First Step?

Contact the other side and try to resolve the issue. Under Civil Local Rule 37-1(a), the Court will not hear any motions about disclosures or discovery unless the parties have previously tried to resolve all the issues on their own.

What If The Parties Can't Resolve The Problem And Discovery Is Still Due?

If you receive a discovery request and you believe it is inappropriate or too burdensome, you may file a motion fora protective order under Rule 26(c) of the Federal Rules of Civil Procedure. A protective order is an order limiting discovery or requiring discovery to proceed in a certain way. A motion for a protective order must be filed in either the court where the lawsuit is being heard or in the federal district court in the district where a deposition in which an issue arises is being taken.

A motion for a protective order MUST include:

What If The Parties Are Stuck On A Problem In The Middle Of A Discovery Event?

A "discovery event" is any activity in which the parties meet to exchange discovery information. If a problem arises during a discovery event and you believe it would save a lot of time or expense if the problem were resolved immediately, Civil Local Rule 37-1(b) allows you to call the chambers of the judge who is assigned to handle discovery in your case to request that he or she address the problem through a telephone conference with the parties. This may be the district judge or it may be a magistrate judge to whom the district judge has referred discovery in your case. Before calling the judge's chambers, though, you must first try to resolve the problem on your own.

What Do I Do If A Party Does Not Respond, Or If The Response Is Inadequate?

When a dispute arises over disclosures or discovery responses, there are Two types of motions that may be appropriate:

How Do I File A Motion To Compel?

Under Rule 37(a)(2), a motion to compel a party to make disclosures or to respond to discovery must be filed in the court where the lawsuit is pending. A motion to compel a non-party to respond to discovery must be filed in the court in the district where the discovery is being taken. Read your judge's standing orders before filing a motion to compel — some judges do not allow these motions and have different procedures for resolving discovery disputes.

A motion to compel MUST include:

Who Pays For Expenses Of Making The Motion To Compel?

If the Court grants a motion to compel, the Court must make the person against whom the motion was filed pay the reasonable expenses involved in making the motion, including attorney's fees, UNLESS the Court finds that:

Under What Circumstances Can I Ask For Discovery Sanctions?

What Are The Court's Options For Discovery Sanctions?

If the Court grants a motion for sanctions,it may issue any order authorized by Rule 37(b)(2), including:

In general, if a party fails to make required disclosures under Rule 26(a) or 26(e)(1), or to supplement a response under Rule 26(e), that party cannot use as evidence at the trial, at a hearing, or on any motion, any information or witness that was not disclosed. A party may be relieved of this restriction only by making a motion to the Court, unless the failure to disclose caused no harm to the other side's case. See Rule 37(c).

Who Pays The Cost Of A Motion For Sanctions?

If a Court grants a motion for sanctions, it must require the disobedient person or that person's lawyer, or both, to pay the other side's reasonable expenses, including attorney's fees, unless the Court finds that the conduct was substantially justified or that other circumstances make an award of expenses unjust. A party who does not have a lawyer may not receive an award of attorney's fees.

CHAPTER 18

WHAT IS A MOTION FOR SUMMARY JUDGMENT?

A motion for summary judgment asks the Court to decide a lawsuit without going to trial because there is no dispute about the key facts of the case. A case must usually go to trial because parties do not agree about the facts. When the parties agree upon the facts or if one party does not have any evidence to support its version of what actually happened, the Court can decide the issue based on the papers that are filed by the parties.

When the plaintiff files a motion for summary judgment, the goal is to show that the undisputed facts prove that the defendant violated the law. When defendants file a motion for summary judgment, the goal is to show that the undisputed facts prove that they did not violate the law. The overwhelming majority of summary judgment motions are filed by defendants. Successful summary judgment motions brought by plaintiffs are uncommon.

Rule 56 of the Federal Rules of Civil Procedure governs summary judgment motions.

Factors To Consider In Planning To Make Or Defend A Summary Judgment Motion

Under What Circumstances Is A Motion For Summary Judgment Granted?

Under Rule 56(a), the Court will grant summary judgment if:

How Do I Oppose A Motion For Summary Judgment?

You may file an opposition to the motion for summary judgment in which you dispute the other side's version of the facts and present your own. The procedures for filing an opposition to the motion for summary judgment are the same as any other motion, and are described in Chapter 11, "What is a motion and how do I write or respond to one?" You can download an "Opposition to Motion Packet" with instructions at cand.uscourts.gov/Legal-HeID-Center-Templates.

What Does Each Side Need To Do To Succeed On Summary Judgment?

What Evidence Does The Court Consider For Summary Judgment?

Affidavits As Evidence On Summary Judgment

An affidavit (sometimes called a "declaration") is a statement of fact written by a witness and signed under oath. An affidavit must be sworn before a notary public. Affidavits/declarations may be used as evidence in supporting or opposing a motion for summary judgment. Under Rule 56(c) of the Federal Rules of Civil Procedure and Civil Local Rule 7-5, an affidavit submitted in summary judgment proceedings MUST:

Download blank declaration forms and a motion packet at cand.uscourts.gov/Legal-Help-Center-Templates.

What Is Hearsay?

A declaration or affidavit based on hearsay is not admissible in federal court. Hearsay is "second-hand" evidence or a witness's statement about a fact that is based on something the witness heard from someone else. See Rules 801-807 of the Federal Rules of Evidence.

How Do I Authenticate My Evidence

Some of your evidence may be in the form of documents such as letters, records, emails, contracts, etc. These documents are "exhibits" to your motion. Even if a document is, in principle, admissible under the Federal Rules of Evidence, a document may still not be admissible if you cannot prove it is genuine. Any exhibit that is submitted as evidence must be authenticated before it can be considered by the Court.

A document can be authenticated EITHER by:

See Rules 901 & 902 of the Federal Rules of Evidence.

What Is A Statement Of Undisputed Facts, And Why Would I File One?

A joint statement of undisputed fads is a list of facts that all parties agree are true, and it contains citations to the evidence that shows the judge that the facts are true. A statement is not a joint statement unless it is signed by all of the parties. All facts contained in a joint statement of undisputed facts will be taken as true by the Court.

Civil Local Rule 56-2 does not allow the submission of separate statements of undisputed facts without the Court's permission. Be sure to read your judge's standing order to see whether it addresses this subject.

When Can A Motion For Summary Judgment Be Filed?

What If My Opponent Files A Summary Judgment Motion But I Need More Discovery To Oppose It?

If you need specific discovery in order to provide more evidence to the Court showing why summary judgment should not be granted, you can file, on or before the deadline for opposing the motion, a request under Rule 56(d) of the Federal Rules of Civil Procedure for additional time to conduct discovery. Your request must be accompanied by an affidavit or declaration clearly setting out (1) the reasons why you do not already have the evidence you need to defeat summary judgment and (2) exactly what additional discovery you need and how it relates to the pending motion for summary judgment.

CHAPTER 19

WHAT HAPPENS AT TRIAL?

What Kind Of Disclosures Do I Have To Give The Other Party Before Trial?

Pretrial disclosures are intended to allow the parties to prepare adequately for trial and to avoid surprises. The tables in this section show the basic requirements. Read Rule 26(a)(2)&(a)(3) of the Federal Rules of Civil Procedure for more detailed information.

At least 90 DAYS before trial, you are required to give the other party information about any expert witnesses you intend to have present evidence at trial, and vice-versa. An expert witness is a person who has scientific, technical, or other specialized knowledge that can help the Court or jury understand the evidence. If you hired/specially employed the expert witness to give testimony in your case OR if the expert witness is your employee, the disclosure must include a written report prepared and signed by the expert witness (expert report) unless there is a Court order or the parties stipulate to a different plan.

At least 30 DAYS before trial, you are required to disclose certain information about witnesses and evidence that you will present at trial. See Rule 26(a)(3).

What Is The Difference Between A Jury Trial And A Bench Trial?

In a jurytrial, a jury reviews the evidence presented by the parties, figures out which evidence to believe, and decides what it thinks actually happened. The Court will instruct the jury about the law, and the jury will apply the law to the facts. A jury trial may be held when:

In a bench trial (also sometimes known as a courttrial), there is no jury. The judge determines the law and the facts and who wins on each claim. A bench trial is held when:

When Does The Trial Start?

The judge sets the date on which the trial will begin. Often, this happens at the case management conference but sometimes the trial date will not be chosen until later in the case. In this Court, trial is usually scheduled to begin within 18 months after the complaint is filed.

How Do I Prepare For Trial?

When setting the trial date, the judge usually enters an order setting pretrial deadlines for filing or submitting various documents associated with the trial. For example, the judge will set dates for submitting copies of exhibits, objections to exhibits, and proposed jury instructions. If the judge does not, follow the deadlines set forth in the table on the preceding page. Usually, the judge will set a date for a pretrial conference shortly before trial, at which the judge and the parties will go over the procedure for the trial and resolve any final issues that have arisen before trial.

The Court's orders may also set a deadline ("cut-off date") for filing motions in limine. A motion in limine asks the Court to decide whether specific evidence can be used at trial. See Rules 103 & 104 of the Federal Rules of Evidence.

Besides submitting documents, you also need to arrange for all of your witnesses to be present at trial. If a witness does not want to come to trial, you can serve that witness with a trial subpoena. A trial subpoena is a court document which requires a person to come to Court and give testimony on a particular date. Generally, the same rules that apply to subpoenas for deposition witnesses (see Chapter 16) also apply to trial subpoenas.

Jury Selection

The goal of jury selection is to select a jury that can serve for the whole trial and be fair and impartial through a process called voir dire, during which potential jurors are questioned by the attorneys and the judge. The questions are designed to bring out any biases that the juror may have that would prevent fair and impartial service on that jury. Sometimes the judge lets the lawyers for each party (or any party who does not have a lawyer) ask additional questions.

There are three ways a potential juror can be excused:

Opening Statements

In openingstatements, each party describes the issues in the case and state what they expect to prove during the trial. It helps the jury understand what to expect and what each side considers important. The opening statements must not mention any evidence or issues that the judge has excluded from the trial.

In The Trial, Which Side Puts On Witnesses First?

After the opening statements:

What If The Other Side Wants To Put On Improper Evidence?

All evidence that is presented by either party during trial must be admissible according to the Federal Rules of Evidence and the judge's rulings on the parties' motions in limine. If one party presents evidence that is not allowed under the Federal Rules of Evidence or asks improper questions of a witness, the opposing party may object. If the opposing party does not object, the judge may allow the improper evidence to be presented. At this point, the other party will not be able to challenge that decision on appeal. It is the parties' responsibility to bring errors to the trial judge's attention and to give the judge an opportunity to fix the problem through objections.

How Is An Objection Made And Handled?

What Is A Motion For Judgment As A Matter Of Law, And When Can It Be Made?

Under Rule 50(a) of the Federal Rules of Civil Procedure, in a jury trial either party may make a motion for judgment as a matter of law after the plaintiff has presented all of his or her evidence. A motion for judgment as a matter of law asks the judge to decide the outcome of the case without assistance from the jury because either:

When Does The Defendant Get To Present His Or Her Case?

If a judge does not grant a motion for judgment as a matter of law or the judge puts off the ruling until a later time, the case moves forward. In that case, after the plaintiff has completed examining each of his or her witnesses, the defendant then presents all of the witnesses that support his or her defenses to the plaintiff's case.

What Is Rebuttal?

Rebuttal is the final stage of presenting evidence at trial. It begins after both sides have had a chance to present their cases. In the rebuttal stage, whichever party has the burden of proof (usually the plaintiff) tries to attack or explain the opposing party's evidence. This evidence is called rebuttal evidence. Rebuttal is limited to countering only what the other side argued as evidence; entirely new arguments may not be made during rebuttal. For example, a rebuttal witness might testify that the other party's witness could not have seen the events he reported to the Court. So, after the defendant has finished examining each of his or her witnesses, the plaintiff may call a new witness to show that one of those witnesses was not telling the truth.

What Happens After Both Sides Have Finished Presenting Their Evidence?

After all evidence has been presented, either party may make a motion for judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure. See "What Is A Motion For Judgment As A Matter Of Law, And When Can It Be Made?" above. If the Court grants a motion for judgment as a matter of law on all of the claims in the case, the trial is over.

Otherwise, the Court next hears closing arguments. Each party may present a closing argument that summarizes the evidence and argues how the jury or, in a bench trial, the judge should decide the case based on that evidence. In jury trials, the judge then instructs the jury about the law and the jury's duties, and then the jury goes into the jury room to deliberate.

In A Jury Trial, What Does The Jury Do After Closing Arguments?

After closing arguments, the jury goes into the jury room and discusses the case in private. This process is called "deliberating" The jury discusses the claims, the evidence and the legal arguments and tries to agree about which party should win on each claim. Because the decision of the jury must be unanimous in federal court trials, the jurors must make every effort to deliberate until they all agree.

When the members of the jury reach their decision ("verdict"), they fill out a verdict form and let the judge know that they have completed their deliberations. The judge will then bring the jury into the courtroom and the verdict will be read aloud.

The Court next issues a written judgment announcing the verdict and stating the remedies that will be ordered. When the judgment on a jury verdict is issued, the case is usually over. In some cases, one or more parties files post-trial motions. These can include a renewed motion for judgment as a matter of law or a motion for a new trial.

In A Bench Trial, What Does The Judge Do After Closing Arguments?

The judge will end ("adjourn") the trial after closing arguments. The judge will review the evidence and write findings of facts and conclusions of law. The Court will then issue a written judgment stating the remedies that will be ordered. The Court's findings of fact and conclusions of law and judgment are usually mailed to the parties. When judgment is entered, the case is over unless the Court grants a motion for a new trial or one or more parties takes an appeal to the Court of Appeals— in our district, the United States Court of Appeals for the Ninth Circuit. See "What about an appeal?" in Chapter 20.

CHAPTER 20

WHAT CAN I DO IF I THINK THE JUDGE OR JURY MADE A MISTAKE?

There are a number of different procedures in the trial court that you can use if you believe the judge or jury made a serious mistake in your lawsuit. In addition, you can appeal the final judgment, which is not covered in detail in this Handbook. Information for pro se litigants is available on the website of the Ninth Circuit Court of Appeals at ca9.uscourts.gov/oDen case Drosei.

What Is A Motion For Reconsideration And How Is One Made?

A motion for reconsideration asks the Court to consider changing a previous decision. A motion for reconsideration must be made BEFORE the trial court enters a judgment. See Civil Local Rule 7-9.

A party cannot file a motion for reconsideration without permission from the Court. Therefore, before filing a motion for reconsideration, the party must file a motion for leave to file a motion for reconsideration. The party seeking permission must show to the Court:

A motion for permission to file a motion for reconsideration may not simply repeat arguments made previously to the Court. If you file such a motion, the Court may impose sanctions on you.

No response needs to be filed to a motion for permission to file a motion for reconsideration unless the Court requests it.

If the Court grants a motion for permission to file a motion for reconsideration, the motion will be scheduled for hearing on the normal 35-day motion schedule, unless the Court sets a different schedule. The parties may file opposition and reply briefs, as with any other motion.

If the Court grants a motion for reconsideration, it will vacate the original order, which will have no further effect. The Court either will issue an entirely new order or an amended version of the original order.

What Are Post-Judgment Motions And How Are They Used?

After the entry of judgment, there are several motions provided for by the Federal Rules of Civil Procedure that the (usually) losing party can consider making.

Renewed motion for judgment as a matter of law

After a jury trial, if you believe the jury made a serious mistake and you had made a motion for judgment as a matter of law earlier that was denied, you may make a renewed motion for judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure. You can only make a renewed motion if you have made a motion for judgment as a matter of law at the close of all evidence.

A renewed motion for judgment as a matter of law must be filed no later than 10 days after entry of judgment. The renewed motion must argue that the jury erred in reaching the decision that it made because under all the evidence presented, no reasonable jury could have reached that decision.

When the Court rules on a renewed motion for judgment as a matter of law, it may:

Motion For A New Trial

After a jury trial or a bench trial, either party may file a motion fora new trial. A motion for a new trial asks for a complete re-do of the trial, either on every claim or on just some of them, because the first trial was flawed. The way the motion is handled differs slightly between bench and jury trials:

If the Court grants the motion for a new trial, the Court need not hold an entirely new trial. Instead, it can take additional testimony, amend the findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

Motion To Amend Or Alter The Judgment

Either party can also file a motion to amend or alter the judgment this type of motion asks the judge to change something in the final judgment because of errors during the trial. It is usually granted if:

Both types of motions must be filed no later than 10 days after entry of the judgment. See Rule 59 of the Federal Rules of Civil Procedure.

Motion For Relief From Judgment Or Order

A motion for relief from judgment or order under Rule 60 of the Federal Rules of Civil Procedure does not argue with the Court's decision. Instead, it asks the Court not to require the party to obey it.

Rule 60(a) allows the Court to correct clerical errors in judgments and orders at any time, on its own initiative, or as the result of a motion filed by one of the parties. This authority is usually viewed as limited to very minor errors, such as typos. If an appeal has already been docketed in the Court of Appeals, the error may be corrected only by obtaining permission from the Court of Appeals.

Rule 60(b), however, permits any party to file a motion for relief from a judgment or order for any of the following reasons:

A motion based on the first three reasons must be made within one year after the judgment or order was entered. A motion based on the other three reasons must be made within a reasonable time.

What About Review Of A Magistrate Judge's Decision?

Special rules sometimes apply to decisions by magistrate judges.

Consent Cases: If the parties consented to have the magistrate judge hear the entire case (see Chapter 6 for a full explanation of the consent process), then the options for review are exactly the same as if the case were assigned to a district judge — a motion for reconsideration, the post-judgment motions listed above, and appeal to the Ninth Circuit Court of Appeals (see below).

Non-Consent Cases: If one or more of the parties did not consent, then when a magistrate judge enters orders in the case, he or she does so because the assigned district judge has referred a motion or process (such as the discovery process) to the magistrate judge. In this situation, the district judge is called the referring iudge and the magistrate judge is called the referral judge.

A party's objections to the magistrate judge's order must be filed with the judge who referred the matter no later than 10 days after the party is served with a copy of the magistrate judge's order. The other party or parties need not file a response to the objections unless the referring judge sets a briefing schedule.

If the judge does not set a briefing schedule or deny the objections within 15 days after the objections are filed, the objections are automatically considered DENIED. If the referring judge requests the opposing party to respond to the objections, the referring judge must set aside, vacate, or change any part of the magistrate judge's order that he or she finds is clearly erroneous or contrary to law.

What If The Parties Did Not Consent To A Magistrate Judge?

If the parties did not consent to the referral of the matter to the magistrate judge, then Rule 72 of the Federal Rules of Civil Procedure, Civil Local Rules 72-2 or 72-3 and General Order 42 apply. In such cases, the magistrate judge often prepares a report and recommendation for the referring judge.

If you think the magistrate judge's order or report contains an error, the procedure for seeking review will be either to file a motion or written objections within 14 days of filing of the magistrate judge's order or report. Please read the local rules carefully and, if possible, seek the help of a Legal Help Center attorney (Chapter 2) in determining the correct procedure in your case. The motion or objections should be limited to the specific portions of the order or report you believe contains an error. When filing objections or responses to objections, either party may also file a motion asking the judge to hear additional evidence not considered by the magistrate judge.

The referring judge may make a "de novo review" of any portion of the magistrate's report to which an objection has been made, meaning that the judge will review the issues in those portions of the report from scratch and make his or her own decision. Unless the judge grants a motion to consider additional evidence not considered by the magistrate judge, the judge will consider only the evidence that was presented to the magistrate judge.

The judge may accept, reject, or modify the magistrate judge's recommendation, or send the matter back to the magistrate judge for further review with additional instructions.

What About An Appeal?

All final judgments can be appealed to the United States Court of Appeals for the Ninth Circuit. Most orders issued before judgment ("interlocutory orders") cannot be appealed until a final judgment is entered. Some of the few interlocutory orders that can be appealed are listed under 28 U.S.C. § 1292.

Just as the Federal Rules of Civil Procedure set forth the procedures for litigating a lawsuit in this Court, the Federal Rules of Appellate Procedure set forth the procedures for litigating an appeal in the Ninth Circuit. See Rules 3 through 6 of the Federal Rules of Appellate Procedure and Ninth Circuit Rules 3-1 through 5-2.

Timing. An appeal must be filed within 30 DAYS AFTER ENTRY OF JUDGMENT (or order being appealed). Exceptions to this rule are few. If you plan to appeal, it is very important to calendar this deadline and meet it. The process for starting an appeal is the filing of a notice of appeal in the District Court (this Court) together with the $455 filing fee. The Clerk's Office then transmits the appeal and the case file to the Court of Appeals, which opens a new file with a new case number; all proceedings on appeal are then handled by the judges and the clerk of the Court of Appeals.

Information for pro se litigants is available at ca9.uscourts.gov/open case prose/.

GLOSSARY