1. Judith N. Keep Federal Civil Practice Seminar
THE SAN DIEGO CHAPTER
OF THE FEDERAL BAR ASSOCIATION
PRESENTS
The 13th Annual
Judith N. Keep Federal Civil Practice Seminar
~ T U E S D A Y, S E P T E M B E R 7, ~
The Westin Gaslamp Hotel
San Diego, CA

2. In Memoriam
Judith N. Keep

3. The Life of a Civil Case in U.S. District Court

4. Pleadings and Rule 12 Motions
Hon. Roger T. Benitez
Hon. Cathy A. Bencivengo

5. The Four Stages of Litigation
Trial
MSJ
Disclosure
And
Discovery
Pleadings and Rule 12 Motions

6. The Complaint: Generally
Are you in the Right Place
Article III Standing, Federal Question, Diversity
Venue
Proper Parties, Personal Jurisdiction
“a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)
A demand for the relief sought.

7. “Rule 8.5”
“a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). A court need not accept “legal conclusions” as true. Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 194, 173 L.Ed.2d 868 (2009).

8. The Complaint: Fraud Allegations
In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Fed. R. Civ. P. 9(b).
Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. Id.
A pleading is sufficient under Rule 9(b)if it states the time, place and specific content of false representations as well as identifies the parties to the misrepresentation. Misc. Serv. Workers v. Philco-Ford Corp. 661 F. 2d776,782.

9. Word’s to the Wise! Conspiracy, Bad faith, Color of law,
Malice (* but what about Rule 9(b)?),
Retaliation,
Alter ego,
Ratification, and
Policy.
Each of these is conclusory and needs additional facts before a plausible claim has been stated.

10. Pleadings frame the discovery (relevant to claim or defense [Rule 26])
Factor into proportionality analysis
Extensions Require Good Cause – not just a stipulation between the parties
to serve beyond 90 days [Rule 4(m)]
to file responsive pleading beyond 21 days [Rule 12]

11. Rule 12 Motion to Dismiss
Thoughtful motion – does it exclude case, claim, party
Thoughtful response - plaintiff may amend in response (within 21 days of service [Rule 15]
Based on the pleading
Typically resolved on papers
Leave to Amend – Local Rule 15.1 requires “redlined” version

12. Judith N. Keep Federal Civil Practice Seminar
THE SAN DIEGO CHAPTER
OF THE FEDERAL BAR ASSOCIATION
PRESENTS
The 13th Annual
Judith N. Keep Federal Civil Practice Seminar
~ T H U R S D A Y, S E P T E M B E R 7, ~
The Westin Gaslamp
San Diego, CA

13. The ENE Conference Hon. Nita L. Stomes Hon. Jan M. Adler
Hon. Bernard G. Skomal

14. Judith N. Keep Federal Civil Practice Seminar
THE SAN DIEGO CHAPTER
OF THE FEDERAL BAR ASSOCIATION
PRESENTS
The 13th Annual
Judith N. Keep Federal Civil Practice Seminar
~ T H U R S D A Y, S E P T E M B E R 7, ~
The Westin Gaslamp
San Diego, CA

15. The CMC and Scheduling Issues
Hon. Karen S. Crawford
Hon. Andrew G. Schopler

16. Judith N. Keep Federal Civil Practice Seminar
THE SAN DIEGO CHAPTER
OF THE FEDERAL BAR ASSOCIATION
PRESENTS
The 13th Annual
Judith N. Keep Federal Civil Practice Seminar
~ T H U R S D A Y, S E P T E M B E R 7, ~
The Westin Gaslamp
San Diego, CA

17. Thoughts on Discovery
Hon. William V. Gallo
Hon. Mitchell D. Dembin

18. Judith N. Keep Federal Civil Practice Seminar
THE SAN DIEGO CHAPTER
OF THE FEDERAL BAR ASSOCIATION
PRESENTS
The 13th Annual
Judith N. Keep Federal Civil Practice Seminar
~ T H U R S D A Y, S E P T E M B E R 7, ~
The Westin Gaslamp
San Diego, CA

19. Motions for Summary Judgment
Hon. Dana M. Sabraw
Hon. Gonzalo P. Curiel

20. Rule 56
(c)(2) The judgment sought shall be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.

21. The Current Rule 1. “Shall” in Rule 56 (c) is “permissive”.
To reflect discretion of the court to grant or not.
The only “shall” in the Federal Rules. Note, mandatory duties are described as “must” or “will.”
2. Allows unsworn written declarations or statements under penalty of perjury (in accord with 28 U.S.C.1746) in lieu of formal affidavit.
3. Allows courts the option to consider a fact undisputed when not properly supported or responded to by the parties.

22. Current Rule 4. Sets a time period for a party to file an MSJ.
Anytime up to 30 days after close of all discovery, unless court otherwise orders.
5. Explicit recognition of “partial summary judgments”
6. Leaves requiring separate statement of material facts to the discretion of the local courts.

23. Put it in your Briefs
Executive summary, a “sound bite” on why you should prevail;
Limit your “treatise” on the law on Summary Judgment;
Focus your argument on the specifics of the applicable substantive law;
Lead with your best and limit your back up arguments, and argue the facts not the policy.

24. Judith N. Keep Federal Civil Practice Seminar
THE SAN DIEGO CHAPTER
OF THE FEDERAL BAR ASSOCIATION
PRESENTS
The 13th Annual
Judith N. Keep Federal Civil Practice Seminar
~ T H U R S D A Y, S E P T E M B E R 7, ~
The Westin Gaslamp
San Diego, CA

25. The Final Pretrial Conference and Order
Hon. Janis L. Sammartino
Hon. Cynthia A. Bashant

26. Judith N. Keep Federal Civil Practice Seminar
THE SAN DIEGO CHAPTER
OF THE FEDERAL BAR ASSOCIATION
PRESENTS
The 13th Annual
Judith N. Keep Federal Civil Practice Seminar
~ T H U R S D A Y, S E P T E M B E R 7, ~
The Westin Gaslamp
San Diego, CA

27. Trial
Hon. Barry T. Moskowitz
Hon. Michael M. Anello

28. Judith N. Keep Federal Civil Practice Seminar
THE SAN DIEGO CHAPTER
OF THE FEDERAL BAR ASSOCIATION
PRESENTS
The 13th Annual
Judith N. Keep Federal Civil Practice Seminar
~ T H U R S D A Y, S E P T E M B E R 7, ~
The Westin Gaslamp
San Diego, CA