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, 2017 ~ The Westin Gaslamp Hotel San Diego, CA

In Memoriam Judith N. Keep 1944-2004

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

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

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

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.

“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).

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.

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.

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]

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

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, 2017 ~ The Westin Gaslamp San Diego, CA 92101

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

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, 2017 ~ The Westin Gaslamp San Diego, CA 92101

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

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, 2017 ~ The Westin Gaslamp San Diego, CA 92101

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

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, 2017 ~ The Westin Gaslamp San Diego, CA 92101

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

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.

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.

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.

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.

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, 2017 ~ The Westin Gaslamp San Diego, CA 92101

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

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, 2017 ~ The Westin Gaslamp San Diego, CA 92101

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

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, 2017 ~ The Westin Gaslamp San Diego, CA 92101