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Pre-Trial Practice-Module 3 of 5

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Module 3: Pre-Trial Practice

The Parties

Federal Rule 3 states that an action is commenced by filing a complaint with the court. But once a plaintiff has decided to go forward with a lawsuit, there are a number of decisions that have to be made before that suit is filed. We have already discussed jurisdiction and venue, and we now move on to the other considerations involved in filing a lawsuit.

The very first consideration that has to be examined before filing a lawsuit is whether the potential plaintiff and defendants are the correct parties to the lawsuit in the first place.

Speculative pleadings are never allowed in any court—a case has to be focused on issues that really exist between real parties. Only parties that are directly involved in the facts of the case can participate as a plaintiff or defendant in the case. These entities are called the “real party in interest.[1]” Under the “standing” requirement of Article III of the Constitution, parties must allege actual or pending injuries to be heard in federal court.[2] Parties cannot bring cases that are unripe or moot and may not bring actions to solicit “advisory opinions.”

Joinder procedures may be used to include multiple parties in lawsuits or all parties to already existing cases. This saves time and money by having all issues arising from the same set of facts being tried in the same case. The rules therefore allow, and sometimes require, the plaintiff to find all potential defendants and other plaintiffs and to join them all in the complaint.

Joinder in general can be mandatory or permissive. The difference is in how important the party is to the case. If a party is “necessary” for a case to be tried, then joining that party is mandatory and failure to join that party can lead to having the case dismissed or being foreclosed on being able to file against the other party separately. 

Under rule 19, a party is “required” or “indispensable” when “in that person's absence, the court cannot accord complete relief among existing parties” or the “person claims an interest relating to the subject of the action,” so that  the person's absence may “impair or impede the person's ability to protect the interest or leave an existing party subject to a substantial risk of incurring” multiple obligations because of the interest of the third party.[3]

If a necessary party is not joined, a case may be dismissed,[4] though a court must allow a reasonable time to find that party “to ratify, join, or be substituted into the action.”[5]

If a necessary party cannot be joined due to inability to locate or serve the party with process, the plaintiff must state any necessary parties who are not joined and state why they were left out of the complaint.[6]

Rule 20 covers permissive joinder of parties. These are parties who may be brought into the case, but whose absence would not cause the dismissal of the case. Under that rule, defendants may be joined when the cases against them have the same basic set of facts and questions of law.[7] For example, if a pedestrian is struck by a car and then rolls over and is hit by a motorcycle, she may sue both the car and motorcycle drivers in the same action. Because these actions do not necessarily depend on each other, though, she may also choose to sue them separately.

The rights and obligations of each party subject to permissive joinder are adjudicated separately[8] and the judge may separate the cases against multiple defendants if appropriate.[9]

Minors or people who have been adjudged incompetent can also file lawsuits, but they must designate agents to do so. These can be guardians or other fiduciaries. If no such agent exists, the plaintiff may be represented by guardian ad litem or a “next friend.”[10] Guardians ad litem are appointed by the court. A “next friend” is usually a parent.

Res Judicata and Collateral Estoppel

Another consideration before filing a case is to make sure that the same case was not already tried in that or another court. Sometimes, one party will lose a case and try to file it in a different jurisdiction. This is precluded by the doctrines of res judicata and collateral estoppel.

Res Judicata means that the case was already adjudicated. Even if the precise case was not previously brought, it will be precluded if it is brought by the same plaintiff against the same defendant, and the cause of action was or should have been brought as part of the previous lawsuit because it is based on the same "transaction or occurrence." For example, if Jane sued Tim over an auto accident, seeking damages for her broken arm, she cannot later sue Tim again for her broken leg from the same accident. The broken arm and broken leg were caused by the same accident under the same facts and between the same parties. It should have been raised in the first lawsuit. Because it was not, Jane has lost the potential to recover from it.

Collateral estoppel arises when the cause of action has not been litigated, but the exact issue that is now before the court has been raised and litigated in an earlier action or proceeding. Collateral estoppel is a bit different than res judicata, although the rationale is the same – it is a tool to prevent re-litigation of issues already litigated.[11] For example, if a person is found guilty of drunk driving and later sued by a victim in the accident which was the subject of the drunk driving charge, collateral estoppel can be used to settle the issue that he was drunk and prevent the issue from being re-litigated.

            Both res judicata and collateral estoppel are affirmative defenses that must be raised in the pleadings or are waived.[12]

Class Actions and Mass Torts

There are two situations where large numbers of people may sue the same defendant. One is a “mass tort” and the other is a “class action.”

Mass torts are brought by plaintiffs who allege damages from a defendant following an event or series of events. Mass torts can identify each plaintiff, and each plaintiff gets an individual case. Mass torts include lawsuits arising from airplane crashes, chemical spills, etc. One example of a mass tort action saw a number of cancer patients suing Monsanto over the chemical glyphosate.[13] Each plaintiff in a mass tort can receive an individual hearing or settlement. Mass torts are litigated like any other tort case.

Class actions are cases where a large number of plaintiffs sue a defendant, but the exact number and identity of the plaintiffs may be unknown. Recent class action cases include allegations of a Florida hospital overcharging patients,[14] unwanted text messages from Jenny Craig,[15] Honda CR-V vibrations,[16] and improper fees charged by Wells Fargo in administering home loans.[17]

Class actions have a specific set of requirements that can be broken down into numerocity, commonality, typicality and adequacy of presentation.[18]

The numerocity requirement is not met if the class of plaintiffs is so large that joinder of them all is “impracticable.”[19] Commonality requires that the issues and facts are comparable for most or all members of the class. Typicality means that the person bringing the action (the class representative) must have a claim that is typical of the class members. Finally, the class must be protected by the representatives and the counsel they’ve brought in to handle the case.

If the requirements are met, the judge can “certify” the class[20]. At that point, the potential members of the class will be notified of the lawsuit by the best means possible[21]. Depending on the case, the members can opt in or opt out. Members who do not opt out will share in whatever settlement or verdict is obtained, but cannot bring their own lawsuits for the same facts. Class members who opt out do not benefit from the settlement but may bring their own separate lawsuits.

Filing the Case  

All lawsuits are filed with the clerk of the court that will hear the case. Filing a complaint with the court places it on the court’s docket, which is the record of all pleadings, motions and court orders in the case, as well as the schedule of all hearings.

All pleadings and motions in the case altogether is called the case file. The docket acts as the index to that case file.

Filing lawsuits also requires payments of filing fees, which vary by court.[22] The fees cover the administrative costs borne by courts in handling litigation. The filing fee may be waived if the plaintiff cannot afford it. Plaintiffs may file “poverty affidavits” to request that the fee be waived. This is formally called proceeding in forma pauperis.[23] Some filing fees, such as those in many bankruptcy courts, may also be paid in installments.[24]

Once the case is filed, filing fee paid and index number obtained (which also may cost an additional fee), the plaintiff must put together a summons to be given to the defendant with the complaint. A “summons” is the notice that a case has been filed against the defendant.[25] Under Rule 4(a)(1), the summons must: name the court and the parties; be directed to the defendant; state the name and address of the plaintiff's attorney or—if unrepresented—of the plaintiff; state the time within which the defendant must appear and defend; notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; be signed by the clerk; and bear the court's seal.

Under the federal rules, a summons must be signed, sealed and certified by the clerk of courts for the defendant to be served[26]. Summonses may be amended as necessary.[27]

Service of Process

            Once the summons and complaint have been prepared and the complaint filed with the court, it is time to serve the defendant. Though states vary in what is considered appropriate service, Federal Rule 4 allows the complaint to be filed under either the federal or applicable state rules of service of process. This becomes important if a defendant cannot be located, because state laws sometimes provide options for serving such a defendant, while federal rules do not address that situation.

Under federal rules, the defendant must be served personally by someone other than the plaintiff (such as by a process server or US marshal). The plaintiff is responsible for filing the complaint and summons with the court, getting those documents to the process server, and determining how service of those documents will take place on the defendants.[28] If the defendant cannot be served personally, the service may be accomplished by delivering the complaint and summons to a designated agent of the defendant or by leaving it with someone of suitable age and discretion at the defendant’s residence.[29]

Defendants can waive formal service and agree to be served by mail or email and, if the defendant fails to waive formal service for no good reason, the defendant may be required to pay the expenses associated with the service.[30]

There can be significant differences between state and federal rules of service of process[31]. For instance, the federal rules require the complaint to be served personally, while state rules may allow service by mail. States also have provisions for service by notification or publication, where, if all other kinds of service fail, the complaint can be published in a local newspaper or even posted at the courthouse.

Serving a corporation requires service to an officer of the corporation or to a designated agent for service of process.[32] Many states require corporations to designate the secretary of state as an agent for service of process, making serving corporations quite easy.

People in prison, in the military, living in a foreign country, or otherwise in special circumstances can have special service of process rules. Service in a foreign country can be perfected by following the rules set forth in a treaty between the US and the other country, or, if none exists, by using the service rules of the foreign country.[33]

The warden of a prison can generally be served on behalf of a prisoner.

Serving a person in the military can be complex, depending on the circumstances,[34] but will almost always run through the person’s commanding officer or other designated central channel. In some cases, the Judge Advocate General’s office can be involved.

Serving minors and people who have been judged incompetent depends on state law,[35] although the capacity to sue or be sued in a federal lawsuit comes under federal rule.[36] Most states allow a minor or incapacitated person to be represented by a guardian or another fiduciary for service.

Time Limits for Service

The defendant must be served within 90 days of the filing, or the case must be dismissed by the court without prejudice (which means that it can be re-filed).[37] That time can be extended for good cause and some states allow 120 days to serve after the filing. There is a 21-day limit on answering the complaint under the federal rules, which can also be extended for good cause. However, if the defendant waives process, she has 60 days to answer (or 90, if served outside the United States).

All time limits under these rules can be extended for various reasons, which appear in Federal Rule 6.

After service of process of the complaint, the case is “live.” In some cases, numerous motions and pleadings are filed. These pleadings and motions other than the initial complaint can be served via a much broader list of possibilities, including mail and even e-mail or fax.[38] Service of these documents must be done on the party’s attorney, if the party is represented.

Proof of Service

Unless service is waived, proof of service must be filed with the court in the form of the server's affidavit unless service is made by a US marshal.[39] All pleadings filed subsequent to the complaint must include a certificate of service, signed by the party sending the motion or pleading, and stating who sent the filing, to whom, when and by what means.[40]  

Interpleaders and Impleaders

Joinder can also happen after the case is filed. After the complaint is filed and the defendants answer it, more plaintiffs and defendants can be added to the case, and the defendants can also start suing each other. Defendants can bring cross-claims against other defendants or counterclaims against the plaintiff. Counterclaims and cross-claims must be filed within 14 days of service of the complaint.[41]

An “impleader” complaint brings a third-party defendant into a case when that third party may be liable to a defendant or to contribute towards the defendant’s liability. For example, if the brakes fail on a car and the victim sues the car manufacturer, the manufacturer may want to implead the company that made the brake component that failed. Using the impleader device, the defendant could bring the brake component into the case as another defendant by serving on it a third-party complaint. All service and response rules apply to the third party as though the third party were a new defendant.

Under Rule 22, the “interpleader” device allows the creation of a lawsuit between other parties when the person filing may not necessarily care about the outcome. This happens when ownership of property needs to be determined and the entity who holds the property turns to the courts for guidance as to how to pay it out. For example, if a life insurance company owes $1,000,000 based on an insured’s death, but two family members each stake colorable claims to it, the insurance company may file an interpleader action to force all claimants to the money to participate in the action. The company may not care who eventually gets it, but it wants a judicial determination before making the payout to avoid possible double liability if it pays the benefits to the wrong claimant.

            In our fourth module, we’ll move to the trial itself, discussing trial procedure and common trial motions.


[1] Fed.R. Civ. P. 17(a)(1). Also note that in appeals, outside parties can file briefs in the case, but they are not parties to the case.

[2] See, e.g., Allen v. Wright, 468 U.S. 737. 750-51 (1984).

[5] Fed.R. Civ. P. 17(a)(3).

[7] Fed.R. Civ. P. 20(a)(1).

[8] Fed.R. Civ. P. 20(a)(3).

[11] See U.S. v. Wells, 347 F.3d 280, 285 (8th Cir. 2003).

[12] Rotec Industries, Inc. v. Mitsubishi Corp., 348 F.3d 1116, 1119 (9th Cir. 2003).

[13] Mike James & Jorge L. Ortiz, “Jury Orders Monsanto to pay $289 Million to Cancer Patient in Roundup Lawsuit,USA Today (Aug. 10, 2018),  https://www.usatoday.com/story/news/2018/08/10/jury-orders-monsanto-pay-289-million-cancer-patient-roundup-lawsuit/962297002/.

[14]JFK Medical Center X-Ray Billing Class Action Settlement,” Top Class Actions, (Nov. 5, 2018), https://topclassactions.com/lawsuit-settlements/open-lawsuit-settlements/862704-jfk-medical-center-x-ray-billing-class-action-settlement/.

[15]Jenny Craig Unwaned Text Message Class Action Settlement,” Top Class Actions, (Oct. 25, 2018), https://topclassactions.com/lawsuit-settlements/open-lawsuit-settlements/861846-jenny-craig-unwanted-text-message-class-action-settlement/.

[16]2015 Honda CR-V Vibration Class Action Settlement,” Gibbs Law Group, LLP https://www.classlawgroup.com/honda-cr-v-vibration-lawsuit/ (last visited Dec. 25, 2018).

[17] Amanda Dixon, “What the Wells Fargo Settlement Means for Mortgage BorrowersBankrate, (April 26, 2018), https://www.bankrate.com/mortgages/what-the-wells-fargo-settlement-means-for-mortgage-borrowers/

[19] Fed.R. Civ. P. 23(a)(1).

[21] Fed.R. Civ. P. 23(c)(2).

[22] The filing fee for filing a civil case in federal court is $400 ($350 for the federal court of claims). Individual courts may add miscellaneous fees on top of that.

[23] Under 28 U.S.C. §1915 or as a seaman under 28 U.S.C. §1916.

[24] Form No. B 103A.

[25] A civil summons form is attached.

[28] Fed.R. Civ. P. 4(c)(1)

[29] Fed.R. Civ. P. 4(e).

[30] Fed.R. Civ. P. 4(d)(2)

[31] An overview of states’ service rules can be found here: Kristy Welsh, “Process Service Requirements Listed by State,” Credit Infocenter, (Oct. 21, 2017),  https://www.creditinfocenter.com/legal/process-service-requirements.shtml

[32] Fed.R. Civ. P. 4(h).

[33] Fed.R. Civ. P. 4(f).

[34] Under 32 CFR 720.20.

[37] Fed.R. Civ. P. 4(m).

[39] Fed. R. Civ. P. 4(l)(1).

[40] Fed.R. Civ. P. 5(d)(1).

[41] Fed.R. Civ. P. 14(a)(1).