The F.R.C.P. Part III Alan R. Beckman, J.D. The F.R.C.P. Part III Alan R. Beckman, J.D.

The F.R.C.P.Part III

Alan R. Beckman, J.D.

Part III: F.R.C.P. rules 54 through 83

Introduction

These rules primarily address procedures relating to:

Post-trial matters such as judgments and remedies

Special proceedings and General court administration


Rule 54: Judgments…*

This rule defines judgment, how judgments are entered and how costs and attorney fee requests are handled in the judgment

Note: paralegals are not usually involved with this rule unless preparing an order of judgment for the court


Rule 55: Default; Default Judgment**

This rule provides a two step process for obtaining a default judgment:

• Clerk’s entry of default based on an affidavit and

• Motion for D.J. made to clerk or the court

The rule also provides for motions to set aside a D.J.


Rule 56: Summary judgment**

Provides for a motion for summary judgment:

• By either party• As to all or part of the claims• Filed pre-trial within 30 days of the

close of discovery• Establishes standard

Note: Paralegals frequently draft MSJs and prepare for the hearings


Rule 57: Declaratory judgment*

Briefly describes the process for requesting a declaratory judgment, i.e., a judgment declaring one’s rights under law or in a contract, without damages

Note: Paralegals may on occasion draft MDJs and prepare for the hearings


Rule 58: Entering judgment*

Details the process for entering a judgment and for requesting and entry of judgment

Note: the significance of this rule is that when you receive the written entry of judgment, that date of receipt “triggers” certain important time deadlines


Rule 59: New trial…**

This important rule provides:• Contents and time frame for MNT• For sua sponte MNT• For amendment and alteration of a

judgment

Note: MNT is a precondition for an appeal


Rule 60: Relief from judgment…***

This frequently filed motion:• Allows reconsideration of adverse

rulings for several lenient reasons• Provides broad authority for the

court in granting relief to effect a just result

Note: Motions for Relief may redress any adverse court rulings, e.g., setting DJ aside


Rule 61: Harmless error*

A brief rule placing a duty on courts to disregard legally harmless error, i.e., error which does not affect substantial justice

Note: this rule implements an appellate review standard into the trial court proceedings to minimize the need for appeals and clarifies the use of the standard


Rule 62: Stay of proceedings…**

Allows for stays pending appeal and how to obtain a stay

Note: this rule governs the granting off stay orders and provides for the posting of bonds by the benefiting party


Rule 62.1: Indicative ruling…

Not reviewed, due to little or no paralegal involvement with the rule.


Rule 63: Judge’s inability to proceed *

A brief rule permitting judges to liberally substitute for the original judge while providing assurances the new judge is fully prepared by recalling witnesses as needed

Note: this issue infrequently arises where judges become ill or otherwise unavailable to complete the hearing or trial


Rule 64: Seizing a person or property **

A brief rule permitting judges the enforcement tools needed to execute on a judgment, e.g., to seize funds in a bank account

Note: this provides a mechanism for judgment holders to satisfy their judgment


Rule 65: Injunctions and restraining orders **

Sets forth the procedures and requirements for (a) T.R.O.s and (b) long term prohibitory and mandatory preliminary injunctions (Often issued after trial or settlement

Note: driven by due process considerations, the rule balances the need for injunctive relief versus the right of fair notice and opportunity to be heard


Rule 65.1: Proceedings against a surety*

Sets forth the procedures to impose liability upon sureties and their bond by way of motion (as opposed to filing a separate action) and the clerk becomes the agent for the surety regarding notices, etc.

Note: the rule seeks to simplify and expedite actions against sureties, often based on exigent circumstances.


Rule 66: Receivers*

Sets forth the procedures regarding actions against receivers (holders of property in cases, subject to directions from the court.) Paralegal use of this rule is highly unlikely.


Rule 67: Deposit into Court*

Sets forth the procedures for a party, with Court permission, to deposit things of value, usually money, with the clerk for handling as directed by the Court.

Note: This often involves parties paying judgments through the Courts or “pleading in” amounts which are involved in the case for Court dispersement purposes.


Rule 68: Offer of judgment**

Sets forth the procedures for a party to make a formal offer to accept judgment against an opposing party or risk the consequences of a verdict which is not as favorable as the offer.

Note: This rule adopts the English view that reasonable offers should be accepted and penalties are imposed for, in effect, frivolously going to trial. Offers can be made by either party and are not filed with the Court until after the verdict.


Rule 69: Execution**

Sets forth the procedures for a party to execute upon a money judgment and to obtain discovery related thereto.

Note: By obtaining “Orders (or Writs) of execution”, judgment holders can satisfy their judgments and, through discovery, locate assets.


Rule 70: Enforcing a judgment…*

Authorizes courts to enforce judgments which require an act from the judgment debtor and he/she failed to act. Courts may:

• Vest title through a transfer• Issue writs of attachment &

execution and• Hold disobedient parties in

contemptNote: provides a process to deal with

uncooperative judgment debtors, e.g., foreclosures


Rule 71: Enforcing relief…*

Authorizes courts to order the same forms of remedies/relief upon nonparties as allowed, supra.

Note: provides a process to deal with judgment enforcement for/against nonparties, e.g., debtor sells his car to Sid, a nonparty, in violation of a lien or T.R.O.. Sid can be ordered to surrender the car.


Rule 71.1: Condemning real …*

Establishes procedures for eminent domain, such as:

• Notice to affected, known claimants• Service, Complaint, Answering,

Amending, etc. procedures & standards

• Court trial, jury allowed as to compensation and 3 person commissions to set F.M.V.

Note: constitutional rights in issue

Note: provides a process to deal with judgment enforcement for/against nonparties, e.g., debtor sells his car to Sid, a nonparty, in violation of a lien or T.R.O.. Sid can be ordered to surrender the car.


Rule 72: Magistrate judges…*

Establishes authority and process for M.J.s to decide nondispositive and dispositive motions, vesting power of review with the district judge to accept, reject or modify the M.J.’s decisions.

Note: provides generalized authorities to M.J.s while constitutionally acknowledging the powers of the Title III district judges


Rule 73: Magistrate judges…*

Establishes authority and process for M.J.s to conduct jury and nonjury trials by consent and appeals go directly to the U.S. Courts of Appeal.

Note: provides generalized trial authority in M.J.s preconditioned upon consent of all involved.


Rule 77: Conducting business…*

Expressly establishes when courts and clerks offices are open, trials conducted in open court, hearings in court or chambers, power of clerks to act (subject to judicial review) and serving orders

Note: provides judicial “house keeping” as to those matters addressed above


Rule 78: Hearing motions…**

Expressly establishes when courts hear motions while allowing hearings with or without oral argument or submission of legal briefs

Note: a brief rule allowing motions to be decided with or without briefs and oral arguments as decided by the court


Rule 79: Records kept by the clerk*

Enumerates the duties of the clerk to maintain such records as:

• Detailed docket with indexes• Jury demands• Orders and• Judgments


Rule 80: Stenographic transcript…*

Provides that such transcripts are admissible in hearings and trials and can be proven by a certified record from the reporter/transcriber


Rule 81: Applicabilty of Rules…*

Lists the different proceedings that these rules do and do not apply to.


Rule 82: Jurisdiction…

This short rule indicates that these rules have no intent or effect of limiting or expanding jurisdiction or venue of the courts.

Note: typically, paralegals will have little or no need to reference this rule


Rule 83: Rules by District Courts…*

This rule permits the adoption of consistent (with federal law) “local rules” by the district courts.

Note: Local rules are district-wide and involve implementing local procedures for quality, efficiency and timeliness purposes. These rules are important for paralegals involved with federal cases.


--- Conclusion ---

The remaining rules, i.e., 84, 85 and 86 deal with forms, title and effective date and are (a) administrative in nature and (b) as such, paralegals will have little or no need to use them.


Part III: Quizzers

Connect the rule (column B) which relates best to the motion (column A):

A B

Motion for T.R.O. 59

Motion for Summary Judgment 60

Motion for New Trial 55

Motion for Default Judgment 56

Motion for Stay of Proceedings 62

Motion for Relief 65


Conclusion

The course class work is now completed.Next, prepare for the final exam as

discussed in the F.R.C.P. syllabus. Then, take the online open book/notes exam

on Monday December 12th at the time specified in the Paralegal syllabus. The exam consists of 30 questions (MC, MATCH and Y/N) and students have 30 days after the exam to ask any questions re: the exam of the instructor. GOOD LUCK ON THE EXAM!

The F.R.C.P. Part III Alan R. Beckman, J.D. The F.R.C.P. Part III Alan R. Beckman, J.D.

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Transcript of The F.R.C.P. Part III Alan R. Beckman, J.D. The F.R.C.P. Part III Alan R. Beckman, J.D.