HANDBOOK FOR 

LITIGANTS WITHOUT A LAWYER

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF CALIFORNIA

Revised April 2006

This Handbook is written by the United States District Court

for the Northern District of California and is intended to be

used solely for the benefit of pro se litigants without charge. 

The Handbook is not to be used for commercial purposes.
TABLE OF CONTENTS

ii

INTRODUCTION ....................................................................................................................................................... 1

CHAPTER 1 - HOW CAN I FIND A LAWYER? ..................................................................................................... 4

CHAPTER 2 - WHERE CAN I GO TO RESEARCH THE LAW ON MY OWN? ................................................. 13

Public Law Libraries in the Northern District of California ............................................................. 14

CHAPTER 3 - I WANT TO FILE A LAWSUIT, BUT WHERE DO I START? .................................................... 18

What information needs to be in a complaint ................................................................................... 18

What does a complaint look like? ................................................................................................... 19

What is included in a complaint? .................................................................................................... 19

Why do I have to include my name, address, and telephone and fax numbers in the complaint? ... 20

Why do I have to sign the complaint? ............................................................................................. 20

What is subject matter jurisdiction? ................................................................................................ 21

What is venue? ................................................................................................................................ 22

How do I determine the division of the court to which my lawsuit should be assigned? ................. 22

How much detail should I include in the complaint? ...................................................................... 23

What do I have to put in the complaint if I want a jury trial? .......................................................... 23

How quickly do I need to file a complaint? ..................................................................................... 24

What do I do after I file the complaint? .......................................................................................... 24

Can I change or amend the complaint after I file it? ....................................................................... 24

Example of a caption page ............................................................................................................... 25

CHAPTER 4 - HOW DO I FILE PAPERS WITH THE COURT? .......................................................................... 28

Do I need a caption page? ................................................................................................................ 28

How do I file documents? ................................................................................................................ 29

To file documents in person during normal business hours .............................................................. 30

To file documents in person after hours using the drop box ............................................................. 30

Filing by fax ..................................................................................................................................... 31

Filing by mail ................................................................................................................................... 32

How is filing a complaint different from other papers? .................................................................... 32

What kinds of fees and other costs do I have to pay? ...................................................................... 32

Fee Schedule (effective April 9, 2006) ............................................................................................ 33

What is a court transcript and how much does it cost? ..................................................................... 33

What if I can’t afford the $350.00 fee for filing a new complaint? .................................................. 34

CHAPTER 5 - WHAT ARE THE REQUIREMENTS FOR SERVING DOCUMENTS ON THE OTHER PARTIES

TO THE LAWSUIT? ..................................................................................................................................... 36

What are the rules for serving the complaint? ................................................................................. 36

What if I filed in forma pauperis? .................................................................................................... 36

How do I get summonses if I’m not in forma pauperis? .................................................................. 36

What do I need to serve with the complaint? .................................................................................. 37

How do I get the defendant to waive service? ................................................................................. 37

What if I requested a waiver of service and the defendant doesn’t send it back? ............................. 38

In general, how do serve individuals? ............................................................................................. 38

How do I serve individuals in foreign countries? ............................................................................ 39

How do I serve minors or incompetent persons? ............................................................................. 39

How do I serve a business? ............................................................................................................. 39

How do I serve the United States, its agencies, corporations, officers, or employees? ................... 40

How do I serve a foreign country? .................................................................................................. 41

How do I serve a state or local government? ................................................................................... 41

Is there a time limit for serving the complaint and summons? ........................................................ 41

What is a certificate of service? ...................................................................................................... 41

How do I serve other documents? ................................................................................................... 42
TABLE OF CONTENTS

iii

CHAPTER 6 - AFTER THE COMPLAINT HAS BEEN SERVED ON THE DEFENDANT, WHAT HAPPENS

NEXT? ........................................................................................................................................................... 43

I got a magistrate judge – what does that mean? ............................................................................. 43

What’s next after the complaint is served? ...................................................................................... 43

Time to Respond to the Complaint ................................................................................................... 44

What type of response to the complaint is required? ....................................................................... 45

ANSWERS AND COUNTERCLAIMS ......................................................................................................... 45

What are the requirements for preparing an answer to a complaint? ................................................ 45

Can I make claims against the plaintiff in my answer? ................................................................... 46

Can I amend the answer after I file it? ............................................................................................. 46

Once the answer is filed, does the plaintiff have to file a response to it? ........................................ 46

What are the requirements for counterclaims? ................................................................................. 47

Once a counterclaim is filed, does the plaintiff have to file a response to it? .................................. 48

MOTIONS CHALLENGING THE COMPLAINT ........................................................................................ 48

What is a motion to dismiss the complaint? ..................................................................................... 48

What is a motion for more definite statement? ................................................................................. 49

What is a motion to strike? ............................................................................................................... 50

WHAT DOES IT MEAN TO WIN BY DEFAULT JUDGMENT? ............................................................. 50

CHAPTER 7 - WHAT IS A MOTION, AND HOW DO I WRITE OR RESPOND TO ONE? ............................... 52

What are the requirements for motion papers? ................................................................................. 52

How do I choose a hearing date? ...................................................................................................... 54

What are the requirements for Opposition Briefs? ........................................................................... 55

What are the requirements for Reply Briefs? ................................................................................... 55

What if the motion is urgent and needs to be decided in less than thirty-five days? ........................ 56

What if I need more time to respond to a motion? ........................................................................... 58

CHAPTER 8 - HOW CAN I MAKE SURE THAT I KNOW ABOUT EVERYTHING THAT IS HAPPENING IN

MY CASE? ..................................................................................................................................................... 59

How do I review the case file? ......................................................................................................... 59

How do I review the docket? ............................................................................................................ 60

CHAPTER 9 - WHAT IS A CASE MANAGEMENT OR STATUS CONFERENCE, AND HOW DO I PREPARE

FOR IT? ........................................................................................................................................................ 63

What is a case management conference? .......................................................................................... 63

What is a status conference? ............................................................................................................ 63

When is the initial case management conference? ........................................................................... 63

Does every case have a case management conference? .................................................................... 63

What should I do before the initial case management conference? .................................................. 64

Why do I have to meet and confer? .................................................................................................. 64

What is the proposed discovery plan? .............................................................................................. 64

What is the case management statement? ......................................................................................... 65

What about ADR and arbitration? .................................................................................................... 66

What happens at the initial case management conference? .............................................................. 67

What is the case management order? ............................................................................................... 67

What should I do before other conferences with the judge? ............................................................. 67

CHAPTER 10 - WHAT INFORMATION DO I HAVE TO GIVE TO THE OTHER PARTIES, EVEN IF THEY

DON’T ASK FOR IT? ................................................................................................................................... 68

What are initial disclosures? ............................................................................................................ 68

What are expert disclosures? ............................................................................................................ 69

What are pretrial disclosures? .......................................................................................................... 70

CHAPTER 11 - WHAT IS DISCOVERY? .............................................................................................................. 72

Are there any limits to discovery? .................................................................................................... 72

When can discovery begin? .............................................................................................................. 73
TABLE OF CONTENTS

iv

DEPOSITIONS .............................................................................................................................................. 73

How does a deposition work? .......................................................................................................... 73

Do I need the court’s permission to take a deposition? .................................................................... 74

How do I arrange for a deposition? .................................................................................................. 74

What do I say in a notice of deposition? .......................................................................................... 74

When do I need to get a subpoena for a deposition? ....................................................................... 76

What does it mean if the deponent files a motion to quash the subpoena? ....................................... 76

Can I ask a deponent to bring documents to a deposition? ............................................................... 77

What is a subpoena duces tecum and why would I need one? .......................................................... 77

How long can a deposition last? ....................................................................................................... 77

Does the deponent have to answer all questions? ............................................................................. 77

Who is allowed to ask the deponent questions? ............................................................................... 78

Can the deponent change his or her deposition testimony after the deposition? .............................. 78

INTERROGATORIES ................................................................................................................................... 78

What are interrogatories? ................................................................................................................. 78

Do I need the court’s permission to serve interrogatories? .............................................................. 78

How many interrogatories can I serve? ............................................................................................ 79

What kinds of questions can I ask? .................................................................................................. 79

Are there any requirements for the form of interrogatories? ............................................................ 79

How do I answer interrogatories served on me? .............................................................................. 80

Duty to supplement answers to interrogatories ................................................................................. 80

REQUESTS FOR DOCUMENT PRODUCTION ......................................................................................... 81

How do I get documents from the other parties? .............................................................................. 81

How do I answer a request for document production served on me? ............................................... 82

How do I get documents from persons who are not parties? ............................................................ 83

What kind of a response can I expect if I serve a subpoena duces tecum? ....................................... 83

REQUESTS FOR ADMISSION .................................................................................................................... 84

What is a request for admission? ...................................................................................................... 84

How many requests for admission can I serve? ................................................................................ 85

What kind of a response can I expect to my requests for admission? ............................................... 85

What happens if I do not respond to a request for admission in time? ........................................... 85

How do I respond to a request for admissions served on me? .......................................................... 85

What if I don’t want to admit to the truth of a request for admission? ............................................. 86

Duty to supplement responses .......................................................................................................... 86

PHYSICAL AND MENTAL EXAMINATIONS .......................................................................................... 86

Is a court order required for a mental or physical examination? ...................................................... 86

What happens to the results of the examination? ............................................................................. 87

CHAPTER 12 - WHAT CAN I DO IF THERE ARE PROBLEMS WITH DISCLOSURES OR DISCOVERY? .. 88

What is the first step? ....................................................................................................................... 88

What if the parties can’t resolve the problem, and discovery is still due? ........................................ 88

What if the parties are stuck on a problem in the middle of a discovery event? ............................... 88

What do I do if they don’t respond, or if the response is inadequate? ............................................ 89

What is a motion to compel? ............................................................................................................ 89

How do I file a motion to compel? ................................................................................................... 89

What is a motion for sanctions? ....................................................................................................... 90

Under what circumstances can I ask for discovery sanctions? ......................................................... 90

What kinds of things will a court do as a discovery sanction? ......................................................... 91

CHAPTER 13 - WHAT HAPPENS AT A COURT HEARING? ............................................................................. 92

What is a hearing? ............................................................................................................................ 92

What do I do before a hearing .......................................................................................................... 92

What does a courtroom look like? .................................................................................................... 92

How should I behave at a hearing? ................................................................................................... 93

How does a motion hearing work? ................................................................................................... 94

General advice for hearings .............................................................................................................. 94
TABLE OF CONTENTS

v

CHAPTER 14 - WHAT IS A MOTION FOR SUMMARY JUDGMENT? ............................................................. 95

Under what circumstances is a motion for summary judgment granted? .......................................... 95

What does each side argue to get the result they want on summary judgment? ............................... 96

What evidence does the court consider for summary judgment? ..................................................... 97

What is the statement of undisputed fact, and why would I file one? ............................................... 99

When can a motion for summary judgment be filed? ....................................................................... 99

What if my opponent files a motion for summary judgment before I have all my discovery? ....... 100

CHAPTER 15 - WHAT HAPPENS AT A TRIAL? ............................................................................................... 101

What is the difference between a jury trial and a bench trial? ........................................................ 101

When does the trial start? ............................................................................................................... 101

What do I have to do to prepare for trial? ...................................................................................... 102

What happens during trial? ............................................................................................................ 102

In the trial, which side puts on witnesses first? ............................................................................. 103

What if the other side wants to put on improper evidence? ........................................................... 104

What is a motion for judgment as a matter of law, and why do some parties make that motion right

after the plaintiff’s case in the middle of the trial? ........................................................... 104

When does the defendant get to present his or her case? .............................................................. 105

What is rebuttal? ........................................................................................................................... 105

What happens after both sides have finished presenting their evidence? ...................................... 105

In a jury trial, what is the jury doing after closing arguments? ...................................................... 106

In a bench trial, what does the judge do after closing arguments? ................................................ 106

CHAPTER 16 - WHAT CAN I DO IF I THINK THE JUDGE OR JURY MADE A MISTAKE? ....................... 107

What is a motion for reconsideration? ............................................................................................ 107

Under what circumstances can I file a motion for reconsideration? ............................................... 107

Can I get a Magistrate Judge‘s order or report reviewed? .............................................................. 108

Am I allowed to object to the magistrate judge‘s decisions in general, or just the final decision on the

merits? ............................................................................................................................. 108

How do I get review of a magistrate judge‘s final decision on the merits of a claim? ................... 108

What is a renewed motion for judgment as a matter of law? .......................................................... 109

What is a motion for a new trial, and what is a motion to amend or alter the judgment? ............... 110

What is a motion for relief from judgment or order? ..................................................................... 110

What about an appeal? ................................................................................................................... 111

GLOSSARY ................................................................................................................................................. 112

INDEX ......................................................................................................................................................... 130
1

INTRODUCTION

This handbook is intended to help people who want, or need, to participate in a

civil lawsuit in this court without having the help of a lawyer. It is not intended for use by

people who want to defend themselves in a criminal case without a lawyer.

This handbook is also not intended for companies or similar entities (under Civil

Local Rule 3-9, only individuals may participate in a lawsuit without a lawyer). If you are suing

on behalf of a company or a partnership or some other such entity, you need to get a lawyer who

is a member of the bar of the United States District Court for the Northern District of California.

Assuming that you are an individual who is considering representing yourself in a

civil lawsuit, you should be aware that there may be alternatives to suing. Lawsuits can be

costly, time-consuming and stressful. Some alternatives include the following:

1. Gathering Information

Sometimes things are not what they seem at first. Sometimes things that appear

to have been done on purpose were done unintentionally. Better information may help

you decide whether a lawsuit is advisable. 

2. Working Things Out

Consider talking directly to the people who you think might be responsible for

causing the problem. Sometimes people are more likely to respond in a positive way if

they are approached respectfully and given a real opportunity to talk than if the first thing

they hear from you is a lawsuit.

3. Going to Governmental or Private Agencies

Consider whether there are other processes you could use, or agencies you could

enlist, to address your problem. Sometimes there is a governmental or private agency

that can address the problem you have or who would lend you assistance. Examples of

such agencies include the Equal Employment Opportunity Commission (or an equivalent

state or local agency) to address employment discrimination, the local police review

board or office of citizens’ complaint to hear complaints about police misconduct, a

consumer protection agency or the local district attorney’s office to investigate consumer

fraud, and the Better Business Bureau or private professional associations (e.g.,

associations of contractors, accountants, securities dealers, architects and engineers, etc.)

to hear business-related complaints. 

4. Using a Small Claims Court

In some cases you may have the option of filing a case in small claims court,

which is designed to be used directly by the people without formal training in the law. 

These courts are part of the California state (not federal) court system. 
2

5. Mediation

Dispute resolution services–such as mediation or arbitration—may be faster and

less expensive than taking a case to court. Mediation encourages parties to communicate

clearly and constructively to find common ground or to identify solutions that can serve

the parties’ real interests. 

The point of this Handbook, and this Introduction, is not to discourage you from using a

court if you need to. If your rights under the law have been violated, you are entitled to seek

relief from the court. Moreover, there may be time limits that require you to bring a lawsuit

within a certain amount of time. Nonetheless, you may want to consider all your options before

going forward with a lawsuit.

Because representing yourself in a lawsuit is difficult, the Court urges you to

think seriously about getting a lawyer, if at all possible. Please see Chapter 1, for some

suggestions on how to get a lawyer for your case.

If you have tried to get a lawyer and have not been able to find one, this handbook

will help you through some of the procedures involved in participating in a civil lawsuit. To use

this book, look first at the table of contents located at the beginning of the manual. You can find

specific topics covered in this handbook there.

Many of the terms in this book may seem unfamiliar, so please use the Glossary at

the end of the book to look up explanations for words you do not understand. You can also look

up unfamiliar words in a legal dictionary at your local public library. One that is often used is

Black’s Law Dictionary. You can also try free internet legal dictionaries; one can be found at

the website: http://dictionary.law.com. 

This handbook will help you understand the legal process, but it will not teach

you about the law. For that, you will need to do your own research at a law library. A list of law

libraries that are open to the public can be found in Chapter 2.

The staff of the Clerk’s Office can also help you with court procedures, but they

are forbidden by federal law from giving you any legal advice. For example, they cannot help

you decide how to litigate your lawsuit; suggest legal strategies that may help you win your

lawsuit; give you “inside information” about judges or other court personnel; interpret the law

for you; or even advise you about when documents are due. If you have questions or need to

know more about the law, you need to research the answers yourself. You may not call the

judge or the judge’s staff to ask for legal advice on how to pursue your case, or to argue

your position outside of court.

While this handbook is designed to help you proceed without an attorney, it is no

substitute for having your own lawyer. Besides having to research and learn the facts in your

case, you must also learn and obey detailed procedural rules that may seem confusing or even

picky. Those rules are important, and failing to follow them can affect how your case turns out;

in some cases a mistake may even cause you to lose your case. Litigation is already stressful and

time-consuming for the people involved; that stress is even greater for people who are trying to

be their own lawyer. So as you read these materials, remember that deciding to act without a
3

lawyer is a major step, and that not presenting your arguments effectively can have a dramatic

effect on your case and, in turn, your life. The Court strongly urges everyone who needs to

participate in a lawsuit to obtain a lawyer, if possible.

This handbook does not try to cover all of the procedures that may apply to your

case; it is only a summary. Therefore, you should NEVER rely entirely on these materials, and

you should ALWAYS review the law before taking any action in your lawsuit. If you have

questions or need to know more about the law, that is up to you. Representing yourself means

that you are responsible for following the law. Not knowing the law is no excuse; you will need

to do research at a law library yourself.
To help you understand this manual better, most legal terms are defined in the Glossary, located at the end 1

of this handbook. You should consult this glossary any time you are not sure what a word means. 

4

CHAPTER 1 - 

HOW CAN I FIND A LAWYER?

Everyone who is involved in a lawsuit should make a serious effort to get a lawyer. The 1

law can be complicated. In every case, there are important issues that take skill and practice to

understand and handle. If you represent yourself, you are responsible for understanding and

presenting not just your own point of view about your case, but also understanding the law, the

rules of procedure, and the strengths and weaknesses of the other party’s case. 

Some organizations specialize in helping people in particular cases or just finding a

lawyer. The organizations listed below are all certified legal referral services who may be able

to help you find a lawyer to help you with your case. This list was obtained from the website of

the State Bar of California and was updated as of January 1, 2003. You may wish to visit that

website at http://www.calbar.org/2con/referral.htm to obtain the most current listings. Many

lawyers also advertise in the Yellow Pages under “Attorneys.”

SERVING ALL COUNTIES:

Elder Law

California Advocates for Nursing Home Reform Lawyer Referral Service

1610 Bush Street

San Francisco, CA 94109

(800) 474-1116

(415) 474-5171

(415) 474-2904 (fax)

LRS@canhr.org

http://www.canhr.org

Rights Relating To Creative Works

California Lawyers for the Arts

Headquarters, San Francisco County Branch Office, Oakland

Building C, Room 255 1212 Broadway St., #834

Fort Mason Center Oakland, CA 94612

San Francisco, CA 94123 (510) 444-6351

(415) 775-7200 x762 (510) 444-6352 (fax)

(415) 775-1143 (fax) oaklandcla@yahoo.com

cla@sirius.com

www.calawyersforthearts.org
5

Branch Office, Sacramento Branch Office, Santa Monica

926 “J” Street, #811 1641 18th Street

Sacramento, CA 95815 Santa Monica, CA 90404

(916) 442-6210 (310) 998-5590

(916) 442-6281 (310) 998-5594 (fax)

UserCLA@aol.com

ALAMEDA COUNTY:

Alameda County Bar Association Lawyer Referral Service

610 Sixteenth Street, Suite 426

Oakland, CA 94612

(510) 893-7160

(510) 893-3119 (fax)

http://www.acbanet.org

AIDS Legal Referral Panel of the San Francisco Bay Area

205 13th Street, Suite 270

San Francisco, CA 94103-2461

(415) 701-1100

(415) 701-1400 (fax)

www.alrp.org

Counties served: Alameda, Contra Costa, Marin, San Francisco, San Mateo, Solano,

Sonoma

Bay Area Policewatch

1230 Market Street, #409

San Francisco, CA 94102

(415) 951-4844

(415) 451-4813 (fax)

humanrts@ellabakercenter.org

www.ellabakercenter.org

Counties served: San Francisco, Alameda, Contra Costa, Fresno, Marin, Napa,

San Joaquin, San Mateo, Santa Clara, Solano, Sonoma

Project Sentinel Lawyer Referral Service

430 Sherman Avenue, Suite 308

Palo Alto, CA 94306

(650) 321-6291

(650) 321-4173 (fax)

Counties served: Alameda, San Francisco, San Mateo, Santa Clara
6

CONTRA COSTA COUNTY:

Contra Costa County Bar Association Lawyer Referral Service

1001 Galaxy Way, Suite 102

Concord, CA 94520-5736

(925) 825-5700

(925) 686-9867 (fax)

http://www.cccba.org/cclawyer/lrs.htm

AIDS Legal Referral Panel of the San Francisco Bay Area

205 13th Street, Suite 270

San Francisco, CA 94103-2461

(415) 701-1100

(415) 701-1400 (fax)

www.alrp.org

Counties served: Alameda, Contra Costa, Marin, San Francisco, San Mateo, Solano,

Sonoma

Bay Area Policewatch

1230 Market Street, #409

San Francisco, CA 94102

(415) 951-4844

(415) 951-4813 (fax)

humanrts@ellabakercenter.org

www.ellabakercenter.org

Counties served: San Francisco, Alameda, Contra Costa, Fresno, Marin, Napa,

San Joaquin, San Mateo, Santa Clara, Solano, Sonoma

DEL NORTE COUNTY:

There are no certified legal referral services in Del Norte County.

HUMBOLDT COUNTY:

Humboldt County Bar Association Lawyer Referral Service

123 Third Street

P.O. Box 1017

Eureka, CA 95502

(707) 445-2652

(707) 445-0935

justice@reninet.com

LAKE COUNTY:

There are no certified legal referral services in Lake County.
7

MARIN COUNTY:

Lawyer Referral Service of the Marin County Bar Association

1010 B Street, Suite 325

San Rafael, CA 94901-2989

(415) 453-5505

(415) 453-8273 (fax)

http://www.marinbar.org

AIDS Legal Referral Panel of the San Francisco Bay Area

205 13th Street, Suite 270

San Francisco, CA 94103-2461

(415) 701-1100

(415) 701-1400 (fax)

www.alrp.org

Counties served: Alameda, Contra Costa, Marin, San Francisco, San Mateo, Solano,

Sonoma

Bay Area Policewatch

1230 Market Street, #409

San Francisco, CA 94102

(415) 951-4844

(415) 951-4813 (fax)

humanrts@ellabakercenter.org

www.ellabakercenter.org

Counties served: San Francisco, Alameda, Contra Costa, Fresno, Marin, Napa,

San Joaquin, San Mateo, Santa Clara, Solano, Sonoma

MENDOCINO COUNTY:

There are no certified legal referral services in Mendocino County.

MONTEREY COUNTY:

Monterey County Bar Association Lawyer Referral Service

140 W. Franklin Street, #308

P.O. Box 2307

Monterey, CA 93940

(408) 375-9889

(408) 375-5036 (fax)

sgood@redshift.com
8

NAPA COUNTY:

Bay Area Policewatch

1230 Market Street, #409

San Francisco, CA 94102

(415) 951-4844

(415) 951-4813 (fax)

humanrts@ellabakercenter.org

www.ellabakercenter.org

Counties served: San Francisco, Alameda, Contra Costa, Fresno, Marin, Napa,

San Joaquin, San Mateo, Santa Clara, Solano, Sonoma

SAN BENITO COUNTY:

There are no certified legal referral services in San Benito County.

SAN FRANCISCO COUNTY:

Bar Association of San Francisco Lawyer Referral Service (No walk-ins)

465 California Street, Suite 1100

San Francisco, CA 94104-1804

(415) 989-1616

(415) 782-8985 (TDD)

(415) 477-2389 (fax)

www.sfbar.org/lrs/general.html

Barustors (No walk-ins)

595 Market Street, #1900

San Francisco, CA 94105

(415) 957-1330

http://www.barustors.com/maywerecommend.shtml

AIDS Legal Referral Panel of the San Francisco Bay Area

205 13th Street, Suite 270

San Francisco, CA 94103-2461

(415) 701-1100

(415) 701-1400 (fax)

www.alrp.org

Counties served: Alameda, Contra Costa, Marin, San Francisco, San Mateo, Solano,

Sonoma
9

Bay Area Policewatch

1230 Market Street, #409

San Francisco, CA 94102

(415) 951-4844

(415) 951-4813 (fax)

humanrts@ellabakercenter.org

www.ellabakercenter.org

Counties served: San Francisco, Alameda, Contra Costa, Fresno, Marin, Napa,

San Joaquin, San Mateo, Santa Clara, Solano, Sonoma

Project Sentinel Lawyer Referral Service

430 Sherman Avenue, Suite 308

Palo Alto, CA 94306

(650) 321-6291

(650) 321-4173 (fax)

Counties served: Alameda, San Francisco, San Mateo, Santa Clara

SAN MATEO COUNTY:

Lawyer Referral Service of the San Mateo County Bar Association

303 Bradford Street, Suite B

Redwood City, CA 94063

(650) 369-4149

(650) 368-3892 (fax)

http://www.smcba.org/lrs.htm

Counties served: San Mateo, Santa Clara

Palo Alto Area Bar Association Lawyer Referral Service

405 Sherman Avenue

Palo Alto, CA 94306

(650) 326-8322

(650) 326-2218 (fax)

www.lawscape.com/paaba/

Counties served: San Mateo, Santa Clara

AIDS Legal Referral Panel of the San Francisco Bay Area

205 13th Street, Suite 270

San Francisco, CA 94103-2461

(415) 701-1100

(415) 701-1400 (fax)

www.alrp.org

Counties served: Alameda, Contra Costa, Marin, San Francisco, San Mateo, Solano,

Sonoma
10

Bay Area Policewatch

1230 Market Street, #409

San Francisco, CA 94102

(415) 951-4844

(415) 951-4813 (fax)

humanrts@ellabakercenter.org

www.ellabakercenter.org

Counties served: San Francisco, Alameda, Contra Costa, Fresno, Marin, Napa,

San Joaquin, San Mateo, Santa Clara, Solano, Sonoma

Project Sentinel Lawyer Referral Service

430 Sherman Avenue, Suite 308

Palo Alto, CA 94306

(650) 321-6291

(650) 321-4173 (fax)

Counties served: Alameda, San Francisco, San Mateo, Santa Clara

SANTA CLARA COUNTY:

Santa Clara County Bar Association Lawyer Referral Service

4 North Second Street, Suite 400

San Jose, CA 95113

(408) 971-6822

(408) 287-6083 (fax)

http://www.sccba.com/legalconsumer/

Lawyer Referral Service of the San Mateo County Bar Association

303 Bradford Street, Suite B

Redwood City, CA 94063

(650) 369-4149

(650) 368-3892 (fax)

http://www.smcba.org/lrs.htm

Counties served: San Mateo, Santa Clara

Palo Alto Area Bar Association Lawyer Referral Service

405 Sherman Avenue

Palo Alto, CA 94306

(650) 326-8322

(650) 326-2218 (fax)

www.lawscape.com/paaba/

Counties served: San Mateo, Santa Clara
11

Bay Area Policewatch

1230 Market Street, #409

San Francisco, CA 94102

(415) 951-4844

(415) 951-4813 (fax)

humanrts@ellabakercenter.org

www.ellabakercenter.org

Counties served: San Francisco, Alameda, Contra Costa, Fresno, Marin, Napa,

San Joaquin, San Mateo, Santa Clara, Solano, Sonoma

Project Sentinel Lawyer Referral Service

430 Sherman Avenue, Suite 308

Palo Alto, CA 94306

(650) 321-6291

(650) 321-4173 (fax)

Counties served: Alameda, San Francisco, San Mateo, Santa Clara

SANTA CRUZ COUNTY:

Lawyer Referral Service of Santa Cruz County

P.O. Box 1311

Santa Cruz, CA 95061-1311

(831) 425-4755

(831) 423-6202 (fax)

scba@juno.com

SONOMA COUNTY:

Sonoma County Lawyer Referral Service

37 Old Courthouse Square, Suite 100

Santa Rosa, CA 95404

(707) 546-5297

(707) 542-1195 (fax)

socobar@sonomacountybar.org

http://www.sonomacountybar.org/public/index.htm

Sonoma County Lawyer Referral Service Council on Aging

730 Bennet Valley Road

Santa Rosa, CA 95404

(707) 525-1146

Sonoma County Legal Services Foundation Modest Means Program

1212 Fourth Street #I

Santa Rosa, CA 95404

(707) 546-2924

(707) 546-0263 (fax)
12

AIDS Legal Referral Panel of the San Francisco Bay Area

205 13th Street, Suite 270

San Francisco, CA 94103-2461

(415) 701-1100

(415) 701-1400 (fax)

www.alrp.org

Counties served: Alameda, Contra Costa, Marin, San Francisco, San Mateo, Solano,

Sonoma

Bay Area Policewatch

1230 Market Street, #409

San Francisco, CA 94102

(415) 951-4844

(415) 951-4813 (fax)

humanrts@ellabakercenter.org

www.ellabakercenter.org

Counties served: San Francisco, Alameda, Contra Costa, Fresno, Marin, Napa,

San Joaquin, San Mateo, Santa Clara, Solano, Sonoma
13

CHAPTER 2 - 

WHERE CAN I GO TO RESEARCH THE LAW ON MY OWN?

To bring a case in this Court, you need to know the procedural law or “steps” of a

lawsuit. You also need to know the “substantive law,” that is, what your case is about. For

example, your case may concern an employment issue, or discrimination, or social security

benefits; each of these subjects has a different set of laws. 

Before you bring a lawsuit, you should look through the rules that explain the court’s

procedures. They can be found in several places, and you must know them all. 

First, you need to know the Federal Rules of Civil Procedure. These rules apply in

every federal court in the country, including this Court. These rules include information such as

when briefs are due, how many pages they can be, and various other procedures. You can

review the Federal Rules of Civil Procedure in any law library. You can also find them on the

internet at http://www.law.cornell.edu/rules/frcp/overview.htm. The court does not provide

copies of the Federal Rules of Civil Procedure.

Second, you should consult the Federal Rules of Evidence. These rules define what

types of evidence can be given to the court. Obviously, a case can turn dramatically on what

information can and cannot be shown to the court, so you should learn these rules early in your

case. You can review the Federal Rules of Evidence in any law library. You can also find them

on the internet at http://www.law.cornell.edu/rules/fre/overview.html. The court does not

provide copies of the Federal Rules of Evidence.

Third, this Court has what are known as “Local Rules“ that every person must know. 

The Local Rules of the United States District Court for the Northern District of California

are in addition to the Federal Rules of Civil Procedure; and they apply only to this Court. You

can obtain a copy of these rules free of charge in three different ways: (a) If you have a

computer, you can download a copy of the rules to your computer from this Court’s website,

http://www.cand.uscourts.gov. (b) You also may pick up a copy by visiting any office of the

clerk of the court during office hours. (c) You also may obtain a copy by mail by sending a

written request, along with a stamped (with $4.30 return postage), self-addressed 10”x14”

envelope to:

Local Rules

Clerk, U.S. District Court

450 Golden Gate Avenue

P.O. Box 36060

San Francisco, California 94102.

Fourth, each judge has rules for his or her courtroom. These special rules are called

“Standing Orders.” Normally, the judge’s clerk will send you a copy of these if you are the one

who has filed the complaint. If you do not get them, you can call the judge’s courtroom deputy

or check the Court’s website: http://www.cand.uscourts.gov. 

In order to find the law that applies to your lawsuit–for example, the law of employment

discrimination, or housing claims, or social security benefits–you will need to visit a law library. 
14

You should seek help from a law librarian, who can show you where to find the specific law that

you need. The following law libraries are all open to the general public. Always call first to

make sure that the library will be open when you plan to visit.

Public Law Libraries 

in the Northern District of California

Alameda County:

Bernard E. Witkin Alameda County Law Library

http://www.co.alameda.ca.us/law/index.htm

Main Branch South County Branch

125 12th Street 224 W. Winton Avenue, Rm.

162

Oakland, CA 94607-4912 Hayward, CA 94544

Telephone: (510) 208-4800 Telephone: (510) 670-5230

Fax: (510) 208-670-4836 Fax: (510) 670-5292

University of California Law Library, Boalt Hall

Berkeley, CA 94720-2499

Telephone: (510) 642-4044

Fax: (510) 643-5039

http://www.law.berkeley.edu/library/library.html

Contra Costa County:

Contra Costa County Public Law Library

http://www.cccllib.org

Main Branch Richmond Branch

1020 Ward Street, 1st Floor 100 37th Street, Room 237

Martinez, CA 94553 Richmond, CA 94805

Telephone: (925) 646-2783 Telephone: (510) 374-3019

Fax: (925) 646-2438

Del Norte County:

Del Norte County Law Library

County Courthouse

450 H Street

Crescent City, CA 95531

Telephone: (707) 464-8115
15

Humboldt County:

Humboldt County Law Library

County Courthouse

825 5th Street #812

Eureka, CA 95501

Telephone: (707) 269-1270

Fax: (707) 445-7201

Lake County:

Lake County Law Library

175 3rd Street

Lakeport, CA 95453

Telephone: (707) 263-2205

Fax: (707) 263-2207

Marin County:

Marin County Law Library

20 North San Pedro Road, Suite 2015

San Rafael, CA 94903

Telephone: (415) 499-6356

Fax: (415) 499-6837

Mendocino County:

Mendocino County Law Library

Room 307

100 North State Street

Ukiah, CA 95482

Telephone: (707) 463-4201

Fax: (707) 468-3459

Monterey County:

Monterey County Law Library

Monterey Branch Salinas Branch

Courthouse Federal Office Building

1200 Agualjito Road, Room 202 100 W. Alisal Street, Room 144

Monterey, CA 93940 Salinas, CA 93901

Telephone: (831) 647-7746 Telephone: (831) 755-5046

Fax: (831) 372-6036 Fax: (831) 422-9593
16

Napa County:

Napa County Law Library

Historic Courthouse

825 Brown Street

Napa, CA 94559

Telephone: (707) 259-8191

Fax: (707) 259-8318

San Benito County:

San Benito County Law Library

Courthouse

440 Fifth Street

Hollister, CA 95023

Telephone: (831) 636-9525

Santa Clara County:

Santa Clara County Law Library

360 N. First Street

San Jose, CA 95113

Telephone: (408) 299-3568

Fax: (408) 286-9283

Santa Cruz County:

Santa Cruz Law Library

701 Ocean Street, Room 070

Santa Cruz, CA 95060

Telephone: (831) 457-2525

Fax: (831) 457-2255

librarian@lawlibrary.org

San Francisco County:

San Francisco Law Library Financial District Branch

401 Van Ness Avenue, Room 400 Monadnock Building

San Francisco, CA 94102 685 Market Street, Suite 420

Telephone: (415) 554-6821 San Francisco, CA 94105

Fax: (415) 554-6820 Telephone: (415) 882-9310

http://www.ci.sf.ca.us/sfll/ Fax: (415) 882-9594

http://www.ci.sf.ca.us/sfll//
17

Hastings College of the Law, Library

200 McAllister Street, 4th floor

San Francisco, CA 94102-4978

Telephone: (415) 565-4750

Fax: (415) 621-4859

http://www.uchastings.edu/library/index.html

San Mateo County:

San Mateo County Law Library

Cohn-Sorenson Law Library Building

710 Hamilton Street

Redwood City, CA 94063

Telephone: (650) 363-4913

Fax: (650) 367-8040

http://www.smcll.org

Sonoma County:

Sonoma County Law Library

Hall of Justice, Room 213-J

600 Administration Drive

Santa Rosa, CA 95403-2879

Telephone: (707) 565-2668

Fax: (707) 565-1126

http://www.sonomacountylawlibrary.org/
18

CHAPTER 3 - 

I WANT TO FILE A LAWSUIT, BUT WHERE DO I START?

Generally, the first official step in filing a lawsuit is to file a complaint with the court. 

The complaint is a legal document in which you tell the court and the defendant or defendants

how and why you believe the defendant or defendants violated the law in a way that has injured

you.

You may hear people refer to a lawsuit as “the case” or “the action.” These words mean

the same thing, and are just other ways of referring to a lawsuit.

What information needs to be in a complaint? 

The complaint must contain all of the following information:

The names, addresses, telephone numbers, and fax telephone numbers (if any) of all

of the plaintiffs, and the names of all of the defendants. The plaintiffs are the people who file

the complaint and who claim to be injured by a violation of the law. The defendants are the

people that the plaintiffs contend injured them in violation of the law. The plaintiffs and the

defendants together are referred to as “the parties” or “the litigants“ to the lawsuit.

A statement explaining why you believe this court has the power to decide this

particular case (i.e., that it has “subject matter jurisdiction“ over your lawsuit). Federal courts

cannot decide all legal questions, so you need to explain briefly what federal law allows the

court to decide this dispute.

A statement explaining why you believe the Northern District of California is the

proper federal court (as opposed to other federal district courts) for deciding your lawsuit. This

is called establishing the “venue.”

A statement indicating the division of the Northern District of California court–i.e.,

San Francisco, Oakland, or San Jose – to which you believe the case should be assigned.

A statement explaining what you believe the defendant or defendants did to you that

violated the law and how it injured you – i.e., lost wages, lost benefits, etc.

A statement explaining what you want the court to do.

The signatures of each of the plaintiffs.

Each of these items is explained in greater detail below.

What does a complaint look like? 

There are form complaints available through the clerk’s office if your case is about one

of the following: 
19

Employment discrimination (complaints alleging violations of Title VII of the Civil

Rights Act of 1964); or 

Review of a denial of social security benefits.

You can get a form complaint from the clerk’s office in the court, or on the Northern

District’s website at http://www.cand.uscourts.gov. If your lawsuit is in one of these two

categories, using the forms will probably make it easier for you to write your complaint.

You can also find form complaints for many other areas of the law in nearly any law

library. The following books are examples of large multi-volume encyclopedias of the law that

contain form complaints for many areas of the law:

California Forms of Pleading and Practice;

West’s Federal Forms;

Federal Procedural Forms, Lawyer’s Edition; and

American Jurisprudence Pleading and Practice Forms.

Other books may contain additional helpful forms. Any law librarian can help you find

these books or other books that may help you write your complaint.

Even if there is a form complaint, you may choose to write your own complaint. If you

cannot find a form complaint that applies to your lawsuit, you must write your own complaint.

What is included in a complaint? 

The first page of any document you file with the court is sometimes called the “caption

page.” Rule 10(a) of the Federal Rules of Civil Procedure and this Court’s Civil Local Rule 3-4

explain what needs to be on the caption page and how it should look. The last page of this

chapter shows what a typical caption page should look like. When you file your complaint,

please leave the case number blank. The clerk will assign a case number when you file the

complaint and will stamp that number on the complaint.

After the caption, you can begin writing the text of your complaint. Rule 10(b) of the

Federal Rules of Civil Procedure requires you to write your complaint using a specific format. 

Each paragraph must be numbered, and each paragraph must discuss only a single set of

circumstances. Do not combine different ideas in a single paragraph. Rule 10(b) also requires

you to state each claim separately, as long as it helps make the complaint easier to read. A claim

is a statement in which you argue that the defendant violated the law in a specific way.

Ordinarily, complaints begin with a paragraph explaining the basis for the court’s subject

matter jurisdiction (i.e., what law allows a federal court to decide this case). The next paragraph

should explain the basis for filing the federal lawsuit in this venue, that is the Northern District

of California. The concepts of subject matter jurisdiction and venue will be explained below.
20

The next paragraphs of the complaint should identify the plaintiffs and defendants.

After you have identified the plaintiffs and defendants, the following paragraphs should

explain what happened and how you were injured.

Next, you should state your separate claims (also known as “counts”), explaining how

you believe the defendant’s actions violated the law. If you know the specific laws that you

believe the defendant violated, you should state them. It makes it easier for the court and the

defendants to understand your complaint if you explain the specific laws that you think were

violated. It is not required, however, and if you believe the defendant violated the law, but are

not sure which law was violated, you still may file a complaint.

The last part of the complaint should be a section entitled “Prayer for Relief.” In the

prayer for relief, you should state what you want the court to do. For example, you can request

that the court order the defendant to pay you money, or order the defendant to do something or

stop doing something. If you are not sure what is appropriate, you can also ask the court to

award “all additional relief to which to the plaintiff is entitled.”

At the very end of the complaint, all of the plaintiffs must sign their names.

Why do I have to include my name, address, and telephone and fax numbers in the

complaint? Why do I have to sign the complaint? 

Rule 10(a) of the Federal Rules of Civil Procedure requires the complaint to include the

names of all of the parties to the lawsuit. Rule 11(a) of the Federal Rules of Civil Procedure

requires that every document filed in the lawsuit be signed by the plaintiffs if they are not

represented by a lawyer. Rule 11(a) also requires that every document filed with the court must

state the address and telephone number of the person who signed it. This Court’s Civil Local

Rule 3-4(a) requires that every document filed with the Court include the fax number of the

person on whose behalf the document is being filed, if they have one.

The purpose of including the addresses and telephone numbers is to ensure that the court

and the defendants have a way to contact you. Under Civil Local Rule 3-11, you have a duty to

promptly notify the court and all opposing parties if your address changes while your lawsuit is

pending. If the court sends you mail and it is returned as undeliverable, and the court does not

receive a written communication from you within 60 days with your correct, current address, the

court may dismiss your case.

Rule 11(b) of the Federal Rules of Civil Procedure states that by signing the complaint

you are promising to the court that:

You are not filing the complaint for any improper purpose, such as to harass the

defendant or to force the defendant to spend unnecessary legal fees;

The legal arguments you make in the complaint are justified by existing law, or by a

good faith argument for extending or changing the existing law; and
21

You have evidence to support the facts stated in your complaint, or you are likely to

have that evidence after a reasonable opportunity for further investigation or discovery.

If the court later finds that one of these things was not true–for instance, that you filed the

complaint to harass the defendant, or that you had no evidence to support the facts you alleged in

the complaint–it can impose sanctions on you. Sanctions are penalties. For example, the court

might order you to pay a fine, or to pay the defendant’s attorney’s fees. It can also dismiss your

complaint, or impose any other sanction that it believes is necessary to prevent you, or other

persons like you, from violating Rule 11 again. See Rule 11(c) for more information about

sanctions.

Given the risk of Rule 11 sanctions, it is very important that you investigate the facts and

the law before you file your complaint.

What is subject matter jurisdiction? 

The first paragraph of the complaint should explain why you believe this court has

subject matter jurisdiction to hear your lawsuit. Civil Local Rule 3-5(a) requires you to identify

the law and facts that give the court jurisdiction over your lawsuit.

The court system in the United States is made up of state courts and federal courts, which

are completely separate from each other. State courts have the authority to hear almost any type

of case, but federal courts are authorized under the law to hear only certain types of cases. This

Court, the United States District Court for the Northern District of California, is a federal court. 

If the law permits a federal court to hear a certain type of lawsuit, the court is said to have

subject matter jurisdiction over that type of lawsuit.

The two most common types of lawsuits that federal courts are authorized to hear are the

following:

(1)At least one of the plaintiffs’ claims arises under the Constitution, laws, or treaties of

the United States (see 28 U.S.C. § 1331). This is often referred to as “federal question

jurisdiction.”

(2)None of the plaintiffs live in the same state as any of the defendants, and the amount

in controversy exceeds $75,000 (see 28 U.S.C. § 1332). This is often referred to as “diversity

jurisdiction.” “Amount in controversy“ refers to the dollar value of what you want the court

to do.

There are also other types of lawsuits that federal courts are authorized to hear. You can

find more information in the United States Code beginning at 28 U.S.C. § 1330.

Generally, but not always, if a federal court does not have subject matter jurisdiction to

hear your lawsuit, you should file your lawsuit in state court.
22

What is venue? 

“Venue“ means the place where the lawsuit is filed. The law does not allow you to file

your lawsuit just anywhere in the United States. Generally, you must file your lawsuit in a

district that is convenient for the defendant. This Court is in the Northern District of California,

which includes all of the following counties: Alameda, Contra Costa, Del Norte, Humboldt,

Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San Mateo, Santa Clara,

Santa Cruz, and Sonoma.

Although the rules on venue are somewhat complicated, it is generally appropriate to file

your lawsuit in:

A district where any of the defendants reside, if they all reside in the same state, or

A district where the defendants did a substantial part of the things that you believe

violated the law.

The United States Code contains much more detailed information about venue beginning

at 28 U.S.C. § 1391.

How do I determine the division of the court to which my lawsuit should be assigned? 

This district has courts in three locations or “divisions”: San Francisco, Oakland, and

San Jose. Civil Local Rule 3-4(b) requires a complaint to include a paragraph entitled

“Intradistrict Assignment,” which must identify any basis for assigning the case to a particular

location or division of the Court.

Civil Local Rule 3-2(c) explains that the location or division of the Court to which each

new lawsuit should be assigned is usually determined by the county in which the lawsuit arose. 

A civil lawsuit arises where:

A substantial portion of the events that gave rise to the lawsuit occurred, or

Where a substantial part of the property that is the subject of the lawsuit is located.

If the lawsuit arose in Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin,

Mendocino, Napa, San Francisco, San Mateo or Sonoma counties, the lawsuit usually will be

assigned to the San Francisco or Oakland Divisions of the Court. If the lawsuit arose in Santa

Clara, Santa Cruz, San Benito or Monterey counties, it usually will be assigned to the San Jose

Division of the Court.

A different rule applies to patent infringement actions, securities class actions, capital

and noncapital prisoner petitions, and prisoner civil rights actions. Those lawsuits are assigned

randomly to one of the three divisions of the Court.
23

How much detail should I include in the complaint? 

Rule 8(a) of the Federal Rules of Civil Procedure states that a complaint only needs to

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”

Therefore, you should include enough detail so that the court and the defendant can clearly

understand what happened, how you were injured, and why you believe that you are entitled to a

remedy from the court. You do not need to state every bit of detail that you can remember.

It is often easiest for the court and the defendants to understand your complaint if you tell

your story in the order it happened.

Rule 9(b) of the Federal Rules of Civil Procedure requires you to include more detail

about any claim that the defendant engaged in fraud than you would for other types of claims. 

The circumstances constituting fraud must be stated with particularity, which means that you

must state the time and place of the fraud, the persons involved, the statements made, and an

explanation of why or how those statements were false or misleading.

If you have documents that support your complaint, you can attach copies of them to the

complaint as exhibits. Do not attach copies of any documents that you do not discuss in your

complaint.

What do I have to put in the complaint if I want a jury trial? 

Under the law, not all lawsuits are entitled to jury trials. If you want the trial of your

lawsuit to be heard by a jury, however, it is a good idea to include a “demand for jury trial“ in

your complaint. If you do not tell the court and the defendants in writing that you want a jury

trial within ten days after filing the complaint, you may be found to have given up any right you

might have had to a jury trial. See Rule 38 of the Federal Rules of Civil Procedure for more

information. If you give up your right to a jury trial, the trial of your case will be heard by a

judge without a jury.

Because the time limit for requesting a jury trial is so short, many people find it easier

and more convenient to include the jury demand in the complaint, although it is okay to file it as

a separate document. If you decide to demand a jury trial in your complaint, Civil Local Rule 3-

6(a) requires that you make the demand at the end of the complaint. To ask for a jury trial in

your complaint, all you need to do is include a line at the end of the complaint that says,

“Plaintiff demands a jury trial on all issues” and put the words “DEMAND FOR JURY TRIAL“

in the caption of your complaint. See Civil Local Rule 3-6(a).
24

How quickly do I need to file a complaint? 

Every claim has a time limit associated with it, which is referred to as the “statute of

limitations.” The statute of limitations is the amount of time you have to file a complaint after

you have been injured, or, in some cases, after you became aware of the cause of the injury. 

Once that time limit has passed, the claim is considered to be too old to be the basis of a lawsuit. 

If you include a claim in your complaint that is too old, the opposing party may file a motion to

dismiss the claim as “time-barred,” which is just another way of saying that it is too late: the

statute of limitations has expired on that claim.

The statute of limitations is different for every claim. The only way to find out the

statute of limitations for a particular claim is to do research at a law library.

What do I do after I file the complaint? 

After you file the complaint, you must serve a copy of the complaint on all of the

defendants. Nothing else will happen in your lawsuit until you serve the complaint on the

defendants. The requirements for serving the complaint are explained in Chapter 5 of this

handbook.

Can I change or amend the complaint after I file it? 

Changing a document that has already been filed with the court is known as “amending”

the document. Under Rule 15(a) of the Federal Rules of Civil Procedure, you can amend your

complaint at any time before the defendant files an answer. You do not need to get permission

from the court or from the defendant to amend before the defendant answers.

If you want to amend your complaint after defendant has filed an answer, Rule 15(a) lets

you do this in one of two ways. 

First, you can file the amended complaint if you get written permission from the

defendant. When you file the amended complaint, you must also file the document showing that

you have written permission from the defendant to amend your complaint.

Second, if the defendant won’t agree to let you amend your complaint, you must file a

motion with the court to get its permission to amend your complaint. In that motion, you must

explain why you need to amend your complaint. You should include a copy of the amended

complaint that you want to file. If the court grants your motion, you can then file your amended

complaint.

When you file an amended complaint, Civil Local Rule 10-1 requires you to file an

entirely new complaint. Because an amended complaint completely replaces the original

complaint, you cannot just file the changes that you want to make to the original complaint. The

caption of your amended complaint should say: “FIRST AMENDED COMPLAINT.” If you
25

amend your complaint a second time, the caption should say: “SECOND AMENDED

COMPLAINT.”

Example of a caption page

The following page shows an example of a caption page for a complaint where the

plaintiffs are John Doe and Jane Jones, the defendants are John Smith and Smith Construction

Company, and the plaintiffs are asking for a jury trial.
26

John Doe

123 Main Street

San Francisco, CA 94102

(415) 555-1234

(415) 555-1235 (FAX)

Jane Jones

127 Main Street

San Francisco, CA 94102

(415) 555-6789

(415) 555-6700 (FAX)

Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

JOHN DOE and JANE JONES, )

)

Plaintiffs, ) Case No. _________________

)

vs. ) COMPLAINT

)

JOHN SMITH and ) DEMAND FOR JURY TRIAL

SMITH CONSTRUCTION CO., )

)

Defendants. )

__________________________________________)

1. Jurisdiction. This court has jurisdiction over this complaint because it arises

under the laws of the United States.

2. Venue. Venue is appropriate in this court because both of the defendants reside in

this district, and a substantial amount of the acts and omissions giving rise to this lawsuit

occurred in this district.

3. Intradistrict Assignment. This lawsuit should be assigned to the San Francisco

Division of this Court because a substantial part of the events or omissions which give rise to this

lawsuit occurred in Marin County.

4. Plaintiffs John Doe (“Doe”) and Jane Jones (“Jones”) are construction workers
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

2627

27

employed by defendant Smith Construction Co.
28

CHAPTER 4 - 

HOW DO I FILE PAPERS WITH THE COURT?

In order to start a lawsuit in federal court, there are two things that every person must do. 

First, you must file your papers with the court. Although it may sound simple, this means more

than just giving your papers to the clerk’s office to file. The papers must comply with the

court’s rules, and if they do not, the clerk will not accept them. Second, you must serve your

papers on the other side, which means making sure they receive copies. Until the other side

receives the papers in a way that the law says is valid, they are not a party to the lawsuit, and the

case has not really begun. Although sending papers to another party may sound simple, it too

can be complicated.

This chapter describes how you file documents with the court, including your complaint. 

The next chapter explains how to serve papers that you submit to this Court. While the rules

about filing and serving may seem difficult, they exist for very good reasons. 

The court’s rules about filing ensure that the court receives the papers you want it to

receive, and your papers will not be lost somehow. In a lawsuit, the court must keep track of

everything that the parties want the judge to receive. Filing your papers with the clerk allows the

judges to be sure that they have all the papers, and it allows you a way to check and make sure

that the judges actually have your papers to read. 

Following the filing rules is important, because most of what happens in your case will

be based on the papers that you file. All of your communications with the court will be in

writing, except when the judge has a hearing in your lawsuit. (A hearing is a formal meeting

that occurs in the courtroom at a date and a time agreed to by the judge.) You may talk to the

judge at the hearing to explain the position that you put in your papers to the court. Even then,

however, you are allowed only to explain the arguments that you actually gave the court in

writing. Because most of your contact with the court is based on what you write and file, pay

close attention to the filing rules. Before you begin writing any document that you plan to file

with the court, be sure to read Civil Local Rule 3-4. That rule explains what you have to do for

your document to be accepted for filing. Although this chapter summarizes the process, you are

responsible for obeying the rules themselves.

Do I need a caption page?

Every document you file must begin with a caption page. As discussed in Chapter 3, a

caption page is a cover page that includes: (1) your name, address, telephone number, and, if you

have a fax machine, your fax number; and (2) the caption that includes the name of this Court,

the name of the case, the case number, and a title describing the document. You may wish to

look at captions filed in other cases to get a sense of what the caption should look like, and how

a cause of action is described. However, do not assume that a caption that you have reviewed

complies with all of the rules. You need to review those rules yourself before you submit papers

to the court. (One sample caption can be found at the end of Chapter 3. 

How do I file documents?

You can file documents in three different ways:
29

1. You can bring the documents to the clerk’s office to file them in person;

2. You can fax the documents to a company known as a “fax filing service,”

which will then bring the documents to the clerk’s office to file them; or

3. You can mail the documents to the court for filing.

Each of these methods is explained in detail below.

Regardless of which method you use, certain rules apply in every case. You need to file

all documents in the clerk’s office of the correct courthouse. The Northern District of California

has three different courthouses: San Francisco, Oakland, and San Jose. Each of these is a

different division. You should be sure to send or bring your documents to the clerk’s office in

the division to which your lawsuit has been assigned, unless the judge informs you that you may

file papers elsewhere. For example, if your lawsuit has been assigned to a judge in the San

Francisco division of this Court, you must file all papers in that lawsuit in San Francisco, and not

in the Oakland or San Jose divisions.

You need to have the correct number of copies of your document. In this Court, you

always need an original and at least one copy. To file a document, you must give the clerk the

original copy of the document (that is, the one that you actually signed) and one photocopy of

the signed original. The photocopy must be marked “CHAMBERS“ on the caption page. If

your case has been assigned to a magistrate judge for a hearing, you must also file a third copy

for the magistrate judge . Be sure to keep an extra copy of every document you file for your own

files.

The original document that you give the court will be filed in the permanent court file for

your lawsuit. Filing means that the document is kept by the court and becomes one of the

documents that are formally available to be used by the parties and the judge. The copy will be

sent to the judge in his or her private office or chambers – that’s why the copy should be marked

“CHAMBERS.” Documents that are not accepted for filing may not be sent to the judge, and

will not be considered by the judge.

With every document you file, you should also file a certificate of service, which shows

that you provided a copy of the document to all of the other persons (including organizations)

who are named as parties to the lawsuit. The methods for serving documents on other parties

must be strictly followed, and are described elsewhere in this handbook. If you do not submit a

certificate of service, the clerk will not refuse to file your documents. However, the judge may

disregard any document if a party to the lawsuit demonstrates that you did not serve it with a

copy of the document. For this reason, you should be sure to carefully follow all of the rules for

serving documents and include a certificate of service with all documents that you file.

To file documents in person during normal business hours

The clerk’s office in each division of the court is open from 9:00 a.m. to 4:00 p.m.,

Monday through Friday, except for federal holidays. In San Francisco, the clerk’s office is

located at 450 Golden Gate Avenue, on the 16th floor. In Oakland, the clerk’s office is located

at 1301 Clay Street, Suite 400 South. In San Jose, the clerk’s office is located at 280 South First

Street.
30

To file documents in person, bring the completed documents, in the format required by

Civil Local Rule 3-4, to the clerk’s office during business hours.

Although the clerk’s office makes every effort to file documents quickly, some days and

times of the day are busier than others, and sometimes there are long lines of people waiting to

file documents. If you want to avoid waiting in line, the clerk’s office is usually less busy in the

middle of the week than it is on Monday or Friday. It is also less busy in the middle of the day

than it is first thing in the morning and between 3:00 p.m. and 4:00 p.m. in the afternoon.

When the document is filed, the clerk’s office personnel will stamp the document with

the date you filed the document. If you want to have a stamped copy for your own files, you

must bring another copy for the clerk to stamp. The clerk will stamp that copy and hand it back

to you. Although you are not required to obtain a stamped copy for your own files, it is a good

idea because on very rare occasions documents do get misplaced or lost in the court. If you have

a stamped copy of the document in your own files, you will be able to prove to the judge that

you filed the document on time.

To file documents in person after hours using the drop box

If you want to file your documents in person, but you are unable to go to the clerk’s

office between 9:00 a.m. and 4:00 p.m., the clerk’s office also maintains a drop box that can be

used to file most documents before and after regular business hours.

In San Francisco, the drop box is open between 6:00 a.m. and 9:00 a.m. and between

4:00 p.m. and 6:00 p.m., Monday through Friday, except for federal holidays. The drop box is

near the entrance to the clerk’s office.

In Oakland, the drop box is open between 7:00 a.m. and 9:00 a.m. and between 4:00 p.m.

and 5:00 p.m., Monday through Friday, except for federal holidays. The drop box is located in

the courthouse lobby on the first floor.

In San Jose, the drop box is open between 7:30 a.m. and 9:00 a.m., and between 4:00

p.m. and 5:00 p.m., Monday through Friday, except for federal holidays. The drop box is

located near the clerk’s office entrance on the second floor.

Civil Local Rule 5-3 explains the rules for using the Court’s drop box to file documents. 

Before putting a document in the drop box, you must stamp the last page of the document

“Received,” using the electronic file-stamping machine that is next to the drop box. Don’t forget

to stamp your document in the machine before it goes in the drop box. After stamping each

original and enclosing one chambers copy, the documents must be placed in an orange court

mailing pouch or red Expando folder. These are provided by the court, and will be near the drop

box. Each original document should be placed on top of its copies. Before placing the pouch or

folder in the drop box, please insert in the pouch or folder window a fully completed Drop Box

Filing Information Card. These cards will also be right near the drop box. You may use more

than one pouch or folder per filing, but you’ll need to include a separate Drop Box Filing

Information Card with every pouch or folder.

If you would like a file-stamped copy of each document, you must provide an extra copy

of each document. If you would like the clerk’s office to mail the file-stamped copies back to
31

you, you also must enclose an appropriately sized, self-addressed, stamped envelope with

adequate return postage. If you don’t mind coming back to the courthouse to pick up your filestamped copies, you may mark your return envelope “FOR MESSENGER PICKUP BY:

(NAME).” Your copies will be available for pick-up at the clerk’s office between 2:00 and 4:00

p.m. on the day the drop box is emptied.

The drop box cannot be used for matters that you want to have heard on very short

notice. Specifically, the drop box may not be used to file any papers in support of, or in

opposition to, any matter that is scheduled for hearing within seven calendar days.

If you use the drop box to file a complaint, you must include a check or money order for

the amount of the applicable filing fee. The check or money order should be made payable to

“Clerk, United States District Court.” Do not enclose cash.

Filing by fax

Civil Local Rule 5-2 explains the procedure for filing documents by fax. Although this

Court will accept fax copies for filing, you cannot fax the documents directly to the Court. 

Instead, you must fax the documents to a fax filing agency or to some other person who will then

file the faxed documents in person at the clerk’s office. You must arrange with this person or

service to file an additional “chambers” copy of the faxed document, just as if you were filing

the original documents in person.

When you file a document by fax, you must keep the original document until the end of

the case. You also must keep a copy of the fax record that shows you sent the document. (Most

fax machines make one of these records, called a transmission record, automatically when you

send a document.) The record must state the telephone number of the receiving machine, the

number of pages sent, the transmission time and an indication that no error in transmission

occurred. You must keep this transmission record until the case is over.

You must allow the court or any other party to the lawsuit to review the original

document, upon request.

Filing by mail

You can also file documents by mailing them to the court.

In San Francisco, the mailing address is Clerk’s Office, United States District Court for

the Northern District of California, 450 Golden Gate Avenue, 16th Floor, San Francisco, CA

94102.

In Oakland, the mailing address is Clerk’s Office, United States District Court for the

Northern District of California, 1301 Clay Street, Suite 400 South, Oakland, CA 94612.

In San Jose, the mailing address is Clerk’s Office, United States District Court for the

Northern District of California, 280 South 1st Street, San Jose, CA 95113.
32

If you would like a copy of each document with a stamp on it to show that it was filed,

you must provide an extra copy of each document. If you would like the clerk’s office to mail

the file-stamped copies back to you, you also must enclose an appropriately sized, selfaddressed, stamped envelope with adequate return postage.

How is filing a complaint different from other papers?

There are special rules for filing a complaint. In addition to the rules explained above,

you also must fill out a Civil Cover Sheet. You can obtain a copy of the form for the Civil Cover

Sheet at the clerk’s office or at this Court’s website at http://www.cand.uscourts.gov. 

Instructions for filling out the Civil Cover Sheet are on the form.

When filing a complaint, you must file the original complaint plus two copies. If your

complaint contains claims relating to patents, copyrights, or trademarks, you must file the

original complaint plus three copies.

If you are filing your complaint in person, you must arrive at the clerk’s office before

3:30 p.m. because it can take a longer time for the clerk to file complaints.

What kinds of fees and other costs do I have to pay? 

The fee for filing a complaint is $350.00. After the initial complaint is filed, you do not

have to pay any additional fees to file most documents with the court.

The following chart shows some of the fees that a party must pay if they file certain types

of documents. These fees are set by the United States Congress and the Judicial Conference of

the United States.

The Clerk’s Office can only accept payment by exact change, check, or money order

made payable to “Clerk, U.S. District Court.”
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Fee Schedule (effective April 9, 2006) 

Civil Case filing fee (provided with a Complaint) $350.00

Notice of Appeal filing fee $455.00

Habeas Corpus petition filing fee $5.00

Filing fee for civil action brought under Title III of the Cuban Liberty and

Democratic Solidarity (LIBERTAD) Act of 1996 ($4,180 in addition to $350

filing fee)

$5531.00

Filing of miscellaneous case, including filing of a petition to perpetuate

testimony per Rule 27(a) of the Federal Rules of Civil Procedure, the filing of

papers by trustees under 28 U.S.C. § 754, the filing of letters rogatory or

letters of request, and registering of a judgment from another district, pursuant

to 28 U.S.C. § 1963

$39.00

Search of the records conducted by the clerk of the district court or a deputy

clerk

$26.00 per

name or item

searched

Certification of any document, whether made directly on the document or by

separate instrument

$9.00

Exemplification of any document or paper $18.00

Reproduction of any record or paper, whether from original documents or

from microfiche or microfilm reproductions of original records

$.50

per page

Reproduction of tape recordings, including cost of materials $20.00

Retrieval of a record from the Federal Records Center or National Archives $35.00

Check paid into the court which is returned for lack of funds $35.00

Appeal to a district judge from a judgment of conviction by a magistrate judge

in a misdemeanor case

$25.00

Printing copies of any record or document accessed electronically at a public

terminal in the courthouse

$.10

per page

Usage of electronic access to court records (Web-PACER) $.08

per page

The Clerk shall assess a charge for the handling of registry funds deposited with the court.

For complete text of fee schedule see “Judicial Conference Schedule of Additional

Fees” following the federal statute 28 U.S.C. § 1914.

What is a court transcript and how much does it cost?

Most, but not all, court hearings are recorded by a court stenographer (also known as a

court reporter) who types everything that is said in court as it is being said, or by a tape recorder

operated by either an electronic court recorder operator (ECRO) or a calendar clerk. To find out

if a court proceeding was reported or recorded, you should look at the docket entry of the

hearing. Docketinformation is available on-line from PACER or by calling the docket clerk for

your judge. (See Chapter 8 of this Handbook for more details on accessing docket information

and the PACER system.) Immediately after the docket entry “MINUTES,” you will see another
34

entry such as: “(C/R: John Smith).” In this example, John Smith would have been the reporter or

ECRO. If “None” is listed, the proceeding was not taken down by a court reporter and so no

transcript is available. If the proceeding was tape recorded by a calendar clerk, the entry after

“MINUTES” will be a tape recording number.

If a reporter or ECRO‘s name is listed, you may obtain a transcript by contacting that

court reporter or ECRO directly. If the docket entry indicates that a tape recording of the

proceeding was made, you may obtain a copy by contacting the calendar clerk for the assigned

judge. 

By and large, the faster you want to see the transcript, the more it will cost. There are

many different types of transcription. The fastest is real-time transcription, sometimes called a

“dirty disk” because it is likely to be messy and contain some errors. Real-time transcripts are

available immediately; they are draft, uncorrected transcripts produced by a certified real-time

reporter. Real-time transcripts can be delivered electronically during the proceedings, so you

can actually see the transcript being written as the court reporter types it into his or her

computer, or it can be delivered immediately after court adjourns. The next fastest type of

transcription is hourly, which can be delivered within two hours. Then there’s daily

transcription, where the transcript will be delivered to you after the court adjourns on that day,

but before the next normal opening hour of court. Expedited transcripts will be delivered within

7 calendar days after the reporter receives your request. Finally, there is the ordinary rate. For

the ordinary rate, the transcripts are delivered within 30 calendar days after the reporter receives

your request. 

The following is the fee schedule for transcripts; these rates apply to each page of

transcript:

Original per page 1st Copy to Each Party

per page

Each Additional Copy

to Same Party per page

Ordinary Rate $3.30 $.75 $.50

Expedited Rate $4.40 $.75 $.50

Daily Rate $5.50 $1.00 $.75

Hourly Rate $6.60 $1.00 $.75

Realtime $2.75

More information about requests for transcripts for appellate purposes is in Civil Local

Rule 79-1.

What if I can’t afford the $350.00 fee for filing a new complaint?

If you cannot afford the $350.00 filing fee, you must file an Application to Proceed In

Forma Pauperis. In Forma Pauperis (IFP) is a Latin phrase which means that you are proceeding

as an indigent person. You must fill out the application completely to the best of your ability if

you wish to show the court that you do not have enough money to pay the filing fee. You can

get this form at either the clerk’s office or at the Court’s website, http://www.cand.uscourts.gov. 

If the Court finds that you have demonstrated that you cannot afford to pay the $350.00 fee, you

will be allowed to file your complaint without paying it.

When you file an Application to Proceed IFP, the clerk will not file your complaint

immediately. Instead, the complaint and the Application to Proceed IFP will be assigned to a
35

judge. That judge will decide whether you should be allowed to file your complaint without

paying the filing fee. Although the judge will try to make a decision on your application as

quickly as possible, it probably will not be done on the day you file your application. Therefore,

there is no reason to wait in the clerk’s office. You will be notified of the judge’s decision by

mail.

When the judge reviews your application, he or she will also review your complaint. 

Whether or not you can afford to pay the filing fee, the judge must dismiss your complaint if he

or she finds that your complaint (1) is frivolous or malicious (that is, its only purpose is to harass

the other side); (2) fails to state a proper legal claim (that is, a claim on which relief may be

granted); or (3) seeks money from a defendant who is legally not required to pay money

damages. These requirements are laid out in the federal statute 28 U.S.C. § 1915.

If the judge decides that your complaint meets these requirements, but he or she also

finds that you can afford to pay the filing fee, your complaint will be dismissed unless you pay

the filing fee within a specific period of time.

If the judge decides that your complaint meets these requirements, and he or she also

finds that you cannot afford to pay the filing fee, then the judge will order the clerk to file your

complaint without making you pay the filing fee. You will not need to go back to the clerk’s

office to file your complaint. When the judge approves your Application to Proceed In Forma

Pauperis, the clerk will file the complaint.

However, even if the judge grants your Application to Proceed IFP, the only fee that you

will be excused from paying is the initial $350.00 filing fee. You will still have to pay all other

applicable fees listed above.
36

CHAPTER 5 - 

WHAT ARE THE REQUIREMENTS FOR SERVING DOCUMENTS 

ON THE OTHER PARTIES TO THE LAWSUIT?

You must give the other partiesto your lawsuit a copy of every document that you file

with the court. This is often referred to as “serving” the other parties. Like filing, serving your

documents is critical. If you do not give your papers to the other parties in exactly the way

required by law, it is as if you never filed those papers at all.

The rules for serving the original complaint are different from the rules for serving other

documents, and must be followed exactly. If the complaint is not properly served on the other

parties, the case will not proceed. This chapter describes how to serve your complaint (which

can be a complicated process) and how to serve all other papers (which is generally much

simpler).

What are the rules for serving the complaint? 

Rule 4 of the Federal Rules of Civil Procedure lays out the rules for serving the original

complaint. Serving a complaint is often called “service of process.” The rules for serving a

complaint can be very complicated, but they must be followed carefully. Until the complaint is

served, nothing else will happen in the lawsuit.

In order to serve the original complaint, you must first get a summons from the court. 

You can get a form for this from the clerk’s office or at the Court’s website at

http://www.cand.uscourts.gov. It is your choice whether to ask for one summons listing all of

the defendants, or to get a separate summons for each defendant named in your lawsuit.

Rule 4 of the Federal Rules of Civil Procedure describes the different ways to serve a

complaint. We explain the gist of them here, but you should always read Rule 4, and the Local

Civil Rules of this Court, for yourself to see the complete rules that apply.

What if I filed in forma pauperis?

As discussed in the previous chapter, filing or proceeding in forma pauperis means filing

a case or proceeding as one who cannot afford the court fees, in particular the $350.00 filing fee. 

If you file an Application to Proceed In Forma Pauperis, you should fill out your summons forms

and submit them to the clerk’s office when you file the complaint. If the court approves your

Application to Proceed In Forma Pauperis, the court will issue the summonses and forward them

to the United States Marshal. The United States Marshal will then serve the summonses on the

defendants at no cost to you.

How do I get summonses if I’m not in forma pauperis? 

When the filing fee has been paid, you can obtain as many summonses as you need at the

time you file the complaint. You can also obtain the summonses later if you wish. However, if

you obtain them at the time you file the complaint, you will not need to return later to the court

to obtain them.
37

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, you will need to include a self-addressed postage-stamped envelope so that the court can

return the issued summons to you.

What do I need to serve with the complaint? 

You must serve the complaint and the summons together. Whatever method you use,

Civil Local Rule 4-2 also requires you to serve the defendant with all of the following

documents at the same time you serve the complaint and the summons. The only exception is if

you request and get what is called a “waiver of service,” which is explained below. The clerk

will give copies of the following documents to you when your complaint is filed:

1. A copy of the handbook entitled Dispute Resolution Procedures in the Northern

District of California.

2. A copy of the Order Setting Case Management Conference, which is written by

the judge and sets a date for you to come to court;

3. Standing Orders of the assigned judge (not all judges have them, but they are

special rules that the judge uses and requires parties to follow);

4. The form for preparing a Case Management Statement.

5. Except where your case is assigned to a magistrate judge right away, a copy of the

form allowing a party to give notice that it consents to having the case assigned to a magistrate

judge; and

6. In cases assigned to a special program called the ADR Multi-Option Program, a

copy of the ADR Certification form.

How do I get the defendant to waive service? 

If the defendant waives service, it means that he or she agrees to give up the right to

insist on formal service by hand, and to accept instead informal service by mail. If a defendant

waives service, you will not have to spend money and time hiring a person called a “process

server“ to serve the summons and complaint. You will still need to be able to prove that the

defendant actually got the complaint and required documents, so you need the defendant to sign

and send back to you a form saying that he waived formal service and got a copy of the

documents in the mail. That form is called a “waiver of service.”

Under Rule 4(d) of the Federal Rules of Civil Procedure, you can ask for a waiver of

service from any defendant who is not:

1. A minor or incompetent person in the United States; or
38

2. The United States government, its agencies, corporations, officers or employees;

or

3. A foreign, state, or local government.

Rule 4(d) of the Federal Rules of Civil Procedure also sets forth the requirements for

requesting a waiver of service. This Court provides a form for requesting waiver of service and

a form for waiver of service which comply with the requirements of Rule 4(d). You can obtain a

copy of those forms in the clerk’s office or at this Court’s website,

http://www.cand.uscourts.gov.

You should send those forms to the defendant by first-class mail or other reliable means,

along with a copy of the complaint and the documents itemized in Civil Local Rule 4-2, plus an

extra copy of the request to waive service and a self-addressed envelope with sufficient postage

to return the waiver of service to you. In specifying a due date on the form, you must give the

defendant a reasonable amount of time to return the waiver of service to you, which must be 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 returns to you signed waiver of service to you, you do not need to do

anything else to serve that defendant. Just file the defendant’s signed waiver of service with the

court. Be sure to save a copy for your own files.

What if I requested a waiver of service and the defendant doesn’t send it back?

If the defendant does not return the waiver of service to you, you need to arrange to serve

that defendant in one of the other ways explained in Rule 4 of the Federal Rules of Civil

Procedure. However, if the defendant does not return the waiver of service to you and both you

and the defendant are located in the United States, you may ask the court to order the defendant

to pay you all your costs to serve the defendant another way.

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. 

The easiest way to serve a complaint is to hire a professional process server. You can find

process servers listed in the Yellow Pages. If you do not want or cannot afford to hire a process

server, you can also ask a friend, family member, or any other person over 18 years old to serve

the complaint and summons for you.

In general, how do serve individuals? 

Rule 4(e) of the Federal Rules of Civil Procedure provides for several ways to an

individual in the United States who is not a minor or an incompetent person:

1. Hand deliver the summons and complaint to the defendant;

2. Hand deliver the summons and complaint to the defendant’s home and leave them

with another responsible person who lives there;

3. Hand deliver the summons and complaint to an agent authorized by the defendant
39

or by law to receive service of process for the defendant; or

4. Serve the summons and complaint by any other method provided for by the law

of the State of California or 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.

How do I serve individuals in foreign countries? 

Rule 4(f) of the Federal Rules of Civil Procedure provides for several ways to serve an

individual in a foreign country. Rule 4(g) provides that only a few of those methods may be

used to serve a minor or incompetent person outside the United States. Please review Rules 4(f)

and 4(g) carefully before attempting to serve a defendant outside the United States.

How do I serve minors or incompetent persons? 

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 minor or incompetent person is served. California law for service of process on minors and

incompetent persons can be found at §§ 416.60 and 416.70 of the California Code of Civil

Procedure.

How do I serve a business? 

Rule 4(h) of the Federal Rules of Civil Procedure lists several methods for serving the

complaint and summons on a corporation, partnership, or other unincorporated association.

If you serve a business in the United States:

1. You may serve the complaint and summons according to the laws of the State of

California or the state in which the business is served. California law on serving corporations,

partnerships, and unincorporated associations can be found at §§ 416.10 and 416.40 of the

California Code of Civil Procedure. Section 415.40 of the same Code provides for service on

businesses outside California.

2. Alternatively, you may serve the complaint and summons by:

a. Hand delivering them to an officer of the business, a managing agent or

general agent for the business, or any other agent authorized by the defendant to accept

service of process; or

b. Hand delivering them to any other agent authorized by law to receive

service of process for the defendant. If the law authorizing the agent to accept service of

process requires it, you must also mail a copy of the summons and complaint to the

defendant.

If you serve a business outside the United States, you may use any method described in
40

Rule 4(f) except personal delivery.

How do I serve the United States, its agencies, corporations, officers, or employees? 

The rules for serving the complaint and summons on the United States government or its

agencies, corporations, officers, or employees are stated in Rule 4(i) of the Federal Rules of

Civil Procedure.

To serve the complaint and summons on the United States, you must:

1. a. Hand deliver the complaint and summons to the United States Attorney

for the Northern District of California, or

b. Hand deliver the complaint and summons to an assistant United States

Attorney or clerical employee designated by the United States Attorney in a

writing filed with the clerk of the court, or

c. Send a copy of the summons and complaint by registered or certified mail

addressed to the civil process clerk at the office of the United States Attorney for

the Northern District of California;

AND

2. You must also send a copy of the summons and complaint by registered or

certified mail to the Attorney General of the United States in Washington, D.C.;

AND

3. If your lawsuit challenges the validity of an officer or agency of the United States

but you have not named that officer or agency as a defendant, you must also send

a copy of the summons and complaint by registered or certified mail to the officer

or agency.

To serve the summons and complaint on an agency or corporation of the United States, or

an officer or employee of the United States sued only in an official capacity, you must serve the

United States in the manner described above and send a copy of the summons and complaint by

registered or certified mail to the officer, employee, agency, or corporation.

To serve the summons and complaint on an officer or employee of the United States sued

in an individual capacity for acts or omissions occurring in connection with the performance of

duties on behalf of the United States, you must serve the United States in the manner described

above and serve the employee or officer personally in the manner set forth by Rule 4(e), (f), or

(g) of the Federal Rules of Civil Procedure.

How do I serve a foreign country? 

To serve the summons and complaint on a foreign country, or a political subdivision,

agency, or instrumentality of a foreign country, you must follow the procedure stated in the

federal statute 28 U.S.C. § 1608.
41

How do I serve a state or local government? 

To serve a state or local government, you must:

1. Hand deliver a copy of the summons and complaint to the chief executive officer

of the government entity you wish to serve; or

2. Serve the summons and complaint according to the law of the state in which the

state or local government is located.

Is there a time limit for serving the complaint and summons? 

Rule 4(m) of the Federal Rules of Civil Procedure requires you to either obtain a waiver

of service or serve each defendant within 120 days after the complaint is filed. If you do not

meet that deadline and you do not show the court that you had a good reason for not serving a

defendant, the court may dismiss all claims against any defendant who was not served. The

court must dismiss those claims without prejudice, however, which means that you can file

another complaint later in which you assert the same claims that were dismissed. If you file a

new complaint, you will have another 120 days to try to serve the complaint and summons.

There is no time limit for completing service of the complaint and summons in a foreign

country.

What is a certificate of service? 

After you complete service of the complaint and summons, you should file a “certificate

of service“ (or a “proof of service“) with the court which shows when and how you served the

complaint and summons on each defendant. The purpose of the certificate of service is to allow

the court to determine whether service of the documents was actually accomplished in

accordance with the requirements of the law. The certificate of service must state:

1. The date service was completed;

2. The place where service was completed;

3. The method of service used;

4. The names and street address or email address of each person served; and

5. The documents that were served.

The certificate of service must be signed and dated by the person who actually served the

complaint and summons. If you hired a process server, the certificate of service must be signed

by the process server. If you asked a friend to serve the complaint and summons, the certificate

of service must be signed by the friend who actually served the complaint and summons. The

person who served the documents must also swear under penalty of perjury that the statements in
42

the certificate of service are true. 

How do I serve other documents? 

Fortunately, once you serve the complaint it usually becomes easier to serve other

documents. Rule 5 of the Federal Rules of Civil Procedure establishes the rules for serving

documents other than the original complaint. If the party you have served has a lawyer, then you

must serve that party by serving their lawyer. If the other party decides not to get a lawyer, then

you need to follow the rules for serving an unrepresented party that are described below.

Rule 5 allows you to serve documents on the attorney or party (if not represented), by

any of the following methods: 

1. Handing it to the person; or

2. Leaving it at the person’s office with a clerk or other person in charge, or if no

one is in charge, by leaving it in a conspicuous place in the office; or

3. If the person has no office, or the office is closed, leaving it at the person’s home

with someone of suitable age and discretion who lives there; or

4. Mailing a copy to the person’s last known address; or 

5. If the person you want to serve has no known address, you may leave a copy with

the clerk of the court; or

6. You may deliver a copy by any other method that the person you are serving has

consented to in writing.

In addition, Civil Local Rule 5-5 has other requirements if you have a deadline or due

date to serve the particular document. These local rules can affect whether or not you can mail a

document to serve it; be sure you read them. 

For all the documents you serve on other parties, you need a certificate of service like

you needed for the complaint.
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CHAPTER 6 - 

AFTER THE COMPLAINT HAS BEEN SERVED ON THE DEFENDANT, 

WHAT HAPPENS NEXT?

Filing and serving the complaint opens a case with the court, and a judge will be assigned

to the new case. Papers filed after the complaint go to that judge. There are two kinds of judges

at the District Court: district judges and magistrate judges. District judges are appointed under

the Constitution by the President of the United States and confirmed by the U.S. Senate. They

are appointed for life and cannot be removed unless impeached. Magistrate judges are appointed

under federal statute by the District Court. They are selected by the district judges to serve eight

year terms subject to renewal.

I got a magistrate judge – what does that mean? 

It is possible that your case will be assigned or referred to a magistrate judge. If the

entire case is assigned to a magistrate judge when it is filed, you will be asked whether you

consent to have the magistrate judge handle the case. This decision is up to you and the other

parties; you may accept a magistrate judge, or decline to accept a magistrate judge. If all parties

consent, that magistrate judge will be the judge for the entire case, including trial, and will have

the same powers as a district judge. If any party refuses to consent, the case will be reassigned

to a district judge.

It is also possible that a part of the case–such as a motion regarding a discovery

dispute–will be referred by a district judge to a magistrate judge (motions and discovery are

discussed in later chapters). In that event, the magistrate judge will rule on the referred matter. 

Unlike the situation when a magistrate judge is assigned for the entire case, however, your

consent is not required for the magistrate judge to rule on a referred matter. But the magistrate

judge‘s ruling may be appealed to the district judge. See Chapter 16. 

A magistrate judge is also assigned in some cases to serve as a settlement judge, one

form of alternative dispute resolution, or ADR. As a settlement judge, the magistrate judge has

the power to set conference dates and to require the attendance of parties at a settlement

conference. The magistrate judge may also order production of documents or other evidence,

and may enter settlements into the record.

What’s next after the complaint is served? 

After the defendant has been served with the complaint, he or she must file a written

response to the complaint. The written response must eventually be an “answer,” but before

filing the answer, the defendant has an opportunity to file a motion to dismiss the complaint, a

motion for a more definite statement, or a motion to strike parts of the complaint.

When the defendant files an answer, he or she can also file a counterclaim, which is a

complaint against the plaintiff.

If the defendant does not file an answer in the proper amount of time, the plaintiff can
44

file a motion for a default judgment against the defendant. If the court grants the motion for

default judgment, the plaintiff has won the case.

This chapter will briefly discuss all of these procedures.

Time to Respond to the Complaint

After a defendant is served with the complaint, he or she has a limited amount of time to

file a written response to the complaint. The amount of time the defendant has to file a response

to the complaint depends on who the defendant is and how he or she was served.

Rule 12(a)(1) of the Federal Rules of Civil Procedure states that unless a different time is

specified in a United States statute, most defendants must file a written response to the complaint

within twenty days after being served with the summons and complaint.

According to Rule 4(d)(3) and Rule 12(a)(1)(B) of the Federal Rules of Civil Procedure,

if the defendant returned a signed waiver of service within the amount of time specified in the

plaintiff’s request for a waiver of service, the defendant gets extra time to respond to the

complaint. If the request for waiver of service was sent to a defendant at an address inside the

United States, the defendant has sixty days from the date the request was sent to file a response

to the complaint. If the request for waiver of service was sent to a defendant at an address

outside the United States, the defendant has ninety days from the date the request was sent to

file a response to the complaint.

Rule 12(a)(3)(A) of the Federal Rules of Civil Procedure states that the United States, an

agency of the United States, or an officer or employee of the United States sued in an official

capacity must file a written response to the complaint within sixty days after the United States

Attorney is served.

Rule 12(a)(3)(B) of the Federal Rules of Civil Procedure states that an officer or

employee of the United States sued in an individual capacity for acts or omissions occurring in

connection with the performance of duties on behalf of the United States must file a written

response to the complaint within sixty days after he or she was served, or within sixty days after

the United States Attorney is served, whichever is later.

The time limits are different for responding to an amended complaint. According to Rule

15(a) of the Federal Rules of Civil Procedure, a defendant must file a response to an amended

complaint within the time remaining to respond to the original complaint, or within ten days

after being served with the amended complaint, whichever period is longer, unless the court

orders otherwise.

Finally, Civil Local Rule 6-1 allows the parties to extend the deadline for responding to

the complaint, if they put the agreement in writing and file it with the court, as long as the new

deadline will not require changing the date of any event or any deadline already ordered by the

court. The parties’ written agreement to extend the deadline for responding to the complaint is

automatically effective when it is filed, and does not require a court order approving the

agreement.
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What type of response to the complaint is required? 

Under Rule 12 of the Federal Rules of Civil Procedure, once you have been served with a

complaint, you must, within the required amount of time, either file an answer to the complaint,

or file a motion challenging some aspect of the complaint. If you choose to file a motion, you

still must file an answer, but you do not have to file the answer until after the court rules on your

motion.

ANSWERS AND COUNTERCLAIMS What are the requirements for preparing an

answer to a complaint?

Rules 8(b)-(e) and Rule 12(b) of the Federal Rules of Civil Procedure state the

requirements for writing an answer to a complaint, although they do not actually use the term

“answer.” The answer serves two main purposes. First, because Rule 8(b) requires you to state

which parts of the complaint you admit and which parts you dispute, the answer shows both

sides where they disagree. Second, because Rule 12(b) requires you to state in the answer all

legal and factual defenses you believe you have to each of the claims against you, the answer

also informs the plaintiff what legal and factual issues you intend to bring up during the lawsuit.

It is customary to write your answer in the same numbered paragraph style as the original

complaint. So paragraph one of the answer should respond only to paragraph one of the

complaint, paragraph two of the answer should respond only to paragraph two of the complaint,

etc.

Rule 8(b) requires you to admit or deny every statement in the complaint. If you do not

have enough information to determine whether a statement is true or false, you must state that

you do not have enough information to admit or deny that statement. If only part of a statement

in the complaint is true, you must admit that part and deny the rest. Generally, under Rule 8(d),

you are considered to have admitted every statement that you do not specifically deny, except for

the amount of damages.

Rule 8(c) and 12(b) require you to state all legal and factual defenses you may have to

the plaintiff’s claims. Each defense should be listed in a separate paragraph at the end of the

answer.

Generally, if you do not state a defense in your answer, you may not rely on that defense

or try to present evidence about that defense later in the lawsuit. Because failing to list a defense

in your answer can have dramatic consequences for your lawsuit, you should exercise great care

when you prepare your answer.

Each defense should be listed in a separate paragraph at the end of the answer.

Each defendant must sign the answer, and the answer must be served upon all the other

parties in the lawsuit.
46

Can I make claims against the plaintiff in my answer? 

You may not use the answer to state new claims against the plaintiff. To state new

claims against the plaintiff, you must file a counterclaim, which is the name for a complaint by

the defendant against the plaintiff. You may include a counterclaim at the end of the document

containing your answer to the complaint, and file the answer and counterclaim as a single

document. In fact, under Rule 13(a) of the Federal Rules of Civil Procedure, certain types of

counterclaims must be filed at the same time the answer is filed. We cover the requirements for

counterclaims in more detail below.

Can I amend the answer after I file it? 

Under Rule 15(a) of the Federal Rules of Civil Procedure, you can amend your answer at

any time within twenty days after it is served on the plaintiff. You do not need permission from

the court or from the plaintiff.

If you want to amend your answer more than twenty days after you served the answer on

the plaintiff, Rule 15(a) provides two ways to do it.

First, you can file the amended answer if you get written permission from the plaintiff. 

When you file the amended answer, you must also file the document showing that you have

written permission from the plaintiff to amend your answer.

Second, if the plaintiff will not agree to let you amend your answer, you must file a

motion with the court seeking permission to amend your answer. In that motion, you must

explain why you need to amend your answer. You should include a copy of the amended answer

that you want to file. If the court grants your motion, you can then file your amended answer.

When you file an amended answer, Civil Local Rule 10-1 requires you to file an entirely

new answer. Because an amended answer completely replaces the original answer, you cannot

just file the changes that you want to make to the original answer. The caption of your amended

answer should read: “FIRST AMENDED ANSWER“ (or, if your answer includes a

counterclaim in the same document, “FIRST AMENDED ANSWER AND

COUNTERCLAIM”). If you amend your answer a second time, the caption should read:

“SECOND AMENDED ANSWER“ (or, if your answer includes a counterclaim in the same

document, “SECOND AMENDED ANSWER AND COUNTERCLAIM“).

Once the answer is filed, does the plaintiff have to file a response to it? 

There is no such thing under the Federal Rules of Civil Procedure as a “Response to an

Answer.” Even if you strongly disagree with the statements in the answer, there is no need to

file a response. Under Rule 8(d) of the Federal Rules of Civil Procedure, all statements in an

answer are automatically denied by the other parties to the lawsuit.
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What are the requirements for counterclaims?

A counterclaim is a complaint by the defendant against the plaintiff. Rule 13 of the

Federal Rules of Civil Procedure explains some of the rules for filing counterclaims.

There are two different types of counterclaims under Rule 13. A compulsory

counterclaim is a claim by the defendant against the plaintiff that is based on the same events or

transactions as the plaintiff’s claim against the defendant. A permissive counterclaim is a claim

by the defendant against the plaintiff that is not based on the same events or transactions as the

plaintiff’s claim against the defendant.

For example, if the plaintiff sues the defendant for breaching a contract, the defendant’s

claim that the plaintiff breached the same contract is a compulsory counterclaim. The

defendant’s claim that the plaintiff owes him or her money because the plaintiff breached a

different contract would be a permissive counterclaimpermissive counterclaim.

Under Rule 13(a) of the Federal Rules of Civil Procedure, compulsory counterclaims

generally must be filed at the same time the defendant files his or her answer. If you don’t file a

compulsory counterclaim at the same time you file the answer, generally you will lose the ability

to ever sue the plaintiff for that claim. One exception is that you do not have to file a compulsory

counterclaim if you have already filed that claim in another court. Other more complex

exceptions are listed in Rule 13(a).

If you want to file a permissive counterclaimpermissive counterclaim, you should file it

as early as you can, but there is no rule that requires you to file it at the same time you file your

answer. Whether to file a permissive counterclaimpermissive counterclaim is entirely up to you. 

By not filing a permissive counterclaimpermissive counterclaim, you do not lose the ability to

sue the plaintiff for that claim at another time.

The court automatically has subject matter jurisdiction over compulsory counterclaims if

there is subject matter jurisdiction over the plaintiff’s claim against the defendant. The court can

only decide permissive counterclaimspermissive counterclaim, however, if there is an

independent basis for subject matter jurisdiction over the counterclaim. You can bring a

permissive counterclaimpermissive counterclaim only if the court would have subject matter

jurisdiction over that claim if it were brought as a separate lawsuit.

Counterclaims should be written using the same format you would use to write a

complaint. All of the rules that apply to writing a complaint also apply to writing a

counterclaim.

If you file your counterclaim at the same time you file your answer, you can include the

answer and the counterclaim in separate sections of the same document. If you include the

answer and counterclaim in the same document, the caption of the document should say:

“ANSWER AND COUNTERCLAIM.”

If you forget to file a compulsory counterclaim at the time you file your answer, Rule

13(f) of the Federal Rules of Civil Procedure allows you to file a motion with the court asking
48

for permission to amend your answer and counterclaim to include the counterclaim you forgot to

file.

Once a counterclaim is filed, does the plaintiff have to file a response to it? 

Because a counterclaim is a complaint against the plaintiff, the plaintiff must file a

written response to it. Rule 7(a) of the Federal Rules of Civil Procedure states that the answer to

a counterclaim is called a “reply.” Rule 12(a)(2) of the Federal Rules of Civil Procedure

requires the plaintiff to file a reply to a counterclaim within twenty days after being served,

unless the plaintiff files a motion to dismiss under Rule 12(b). Otherwise, the same rules that

apply to filing a written response to a complaint also apply to filing a written response to a

counterclaim.

MOTIONS CHALLENGING THE COMPLAINT

As explained above, once you are served with a complaint, you have a limited amount of

time to file a written response to the complaint. That written response must eventually be an

answer. However, you can also choose to file one of the motions specified in Rule 12 of the

Federal Rules of Civil Procedure. If you file one of those motions, you do not need to file your

answer until after the court decides your motion.

What is a motion to dismiss the complaint?

A motion to dismiss the complaint argues that there are legal 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:

1. Motion to dismiss the complaint for lack of subject matter jurisdiction. In

this type of motion the defendant argues that the court does not have the legal authority to hear

the kind of lawsuit that the plaintiff filed.

2. Motion to dismiss the complaint for lack of personal jurisdiction over the

defendant. In this type of motion the defendant argues that he or she has so little connection

with the district in which the case was filed that the court has no legal authority to hear the

plaintiff’s case against that defendant.

3. Motion to dismiss the complaint for improper venue. In this type of motion

the defendant argues that the lawsuit was filed in the wrong place.

4. Motion to dismiss the complaint for insufficiency of process, or for

insufficiency of service of process. In these types of motions the defendant argues that the

plaintiff did not prepare the summons correctly or did not properly serve the summons on the

defendant.

5. Motion to dismiss the complaint for failure to state a claim. In this type of

motion the defendant argues that even if everything stated in the complaint is true, the defendant

did not violate the law. A motion to dismiss for failure to state a claim is not appropriate if the

defendant wants to argue that the facts alleged in the complaint are not true. Instead, in a motion
49

to dismiss the complaint for failure to state a claim the defendant assumes that the facts alleged

in the complaint are true, but argues that those facts do not constitute a violation of any law.

6. Motion to dismiss the complaint for failure to join an indispensable party

under Rule 19. In this type of motion the defendant argues that the plaintiff failed to sue

someone who must be included in the lawsuit before the court can decide the issues raised in the

complaint.

Under Rule 12(a)(4) of the Federal Rules of Civil Procedure, if the court denies a motion

to dismiss, the defendant must file an answer within ten days after receiving notice that the court

denied the motion.

If the court grants the motion to dismiss, it can grant the motion “with leave to amend” or

“with prejudice.”

If the court grants a motion to dismiss with leave to amend, that means that there is a

legal problem with the complaint that the plaintiff may be able to fix. The court will give the

plaintiff a certain amount of time to file an amended complaint in which the plaintiff can try to

fix the problems identified in the court’s order. Once the defendant is served with the amended

complaint, he or she must file a written response to the amended complaint within the time

ordered by the court. The defendant can either file an answer or file another motion under Rule

12 of the Federal Rules of Civil Procedure.

If the court grants the motion to dismiss with prejudice, that means there are legal

problems with the complaint that cannot be fixed. Any claim that is dismissed with prejudice is

eliminated permanently from the lawsuit. If the court grants a motion to dismiss the entire

complaint with prejudice, the case is over.

If the court grants a motion to dismiss some claims with prejudice and denies the motion

to dismiss other claims, the defendant must file an answer to the remaining claims within ten

days after receiving notice of the court’s order.

What is a motion for more definite statement?

Instead of filing a motion to dismiss, Rule 12(e) permits a defendant to file a motion for a

more definite statement before filing an answer to the complaint. In a motion for a more definite

statement the defendant argues that the complaint is so vague, ambiguous, or confusing that the

defendant cannot respond to it. The motion must point out how the complaint is defective, and

ask for the details that the defendant needs in order to respond to the complaint.

Under Rule 12(a)(4)(B) of the Federal Rules of Civil Procedure, if the court grants a

motion for a more definite statement, the defendant must file a written response to the complaint

within ten days after the defendant receives the more definite statement. The written response

can be an answer or another motion under Rule 12 of the Federal Rules of Civil Procedure.

If the court denies the motion, the defendant must file a written response to the complaint

within ten days after receiving notice of the court’s order.
50

What is a motion to strike?

Rule 12(f) permits the defendant to file a motion to strike from the complaint any

redundant, immaterial, impertinent, or scandalous matter.

WHAT DOES IT MEAN TO WIN BY DEFAULT JUDGMENT? 

If you have properly served the defendant with the complaint and the defendant does not

file an answer within the required amount of time, the defendant is considered to be in “default.” 

Default simply means that the defendant did not file an answer to the complaint.

If the defendant does not file an answer, the plaintiff is entitled to ask the court for a

default judgment against the defendant. A default judgment means the plaintiff has won the

case.

Rule 55 of the Federal Rules of Civil Procedure discusses the rules for obtaining a default

judgment.

First, you must file a request for entry of default with the clerk of the court. The request

for entry of default must include proof (usually in the form of a declaration) that the defendant

has been served with the complaint. If the request for entry of default shows that the defendant

has been served with the summons and complaint, and has not filed a written response to the

complaint within the appropriate amount of time, the clerk will enter default against the

defendant. Once the clerk enters default, the defendant is not permitted to respond to the

complaint without first filing a motion with the court seeking to set aside the default, under Rule

55(c) of the Federal Rules of Civil Procedure.

Second, after the clerk has entered default against the defendant, you must file a motion

for default judgment against the defendant. Rule 55(b) explains some of the rules for obtaining a

default judgment.

Along with the motion for default judgment you must include a declaration showing that

the defendant was served with the complaint but did not file a written response within the

required amount of time and that default has been entered. You also must file one or more

declarations proving the amount of damages that you have suffered because of what your

complaint claimed the defendant did.

Once default is entered, the defendant is considered to have admitted every fact stated in

the complaint, except for the amount of damages. The defendant can still oppose a motion for

default judgment, however, by attacking the legal sufficiency of the complaint. For example, the

defendant could argue that the facts stated in the complaint do not constitute a violation of any

law. The defendant may also oppose a motion for default judgment by presenting evidence that

you did not suffer the amount of damages that you ask the court to award.

Under Rule 54(c) of the Federal Rules of Civil Procedure, the court cannot enter a default

judgment that awards you more money than you asked for in your complaint. The court also

cannot give you any type of relief other than that for which you specifically asked in your

complaint.
51

Special rules apply if you are seeking a default judgment against any of the following

parties:

1. A minor or incompetent person (see Rule 55(b) of the Federal Rules of Civil

Procedure);

2. The United States government or its officers or agencies (see Rule 55(e) of the

Federal Rules of Civil Procedure);

3. A person who is in military service (see federal statute 50 U.S.C. App. § 520); or

4. A foreign country (see federal statute 28 U.S.C. § 1608(e)).
52

CHAPTER 7 - 

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

Filing and serving a complaint is the first step in a lawsuit. After that, whenever you want

the court to do something, you need to make a motion. Basically, a motion is a formal request

you make to the court. Rule 7(b) of the Federal Rules of Civil Procedure requires all motions to

be made in writing, except for motions made during a hearing or trial. You may make verbal (or

“speaking”) motions during a hearing or trial, but even then the court may ask you to put your

motion in writing.

Usually, the following things occur when a motion is filed. First, one side files a motion

explaining what they want the court to do and why the court should do it. The party who files a

motion is referred to as the “moving party.” Next, the opposing party files an opposition brief

explaining why it believes the court should not grant the motion. Then the moving party files a

reply brief in which it responds to the arguments made in the opposition brief. At that point,

neither side can file any more documents about the motion without first getting permission from

the court. Once all of the papers relating to the motion are filed, the court can decide the motion

based solely on the arguments in the papers, or it can hold a hearing. If the court holds a

hearing, each side has an opportunity to talk to the court about the arguments in their papers. 

The court then has the option of announcing its decision in the courtroom (ruling from the

bench), or to further consider the motion (taking the motion under consideration) and send the

parties a written decision.

What are the requirements for motion papers?

In addition to requiring most motions to be in writing, Rule 7(b) of the Federal Rules of

Civil Procedure also states that all of the court’s rules about captions and the format of

documents apply to motions. (A sample caption page can be found at the end of Chapter 3 of

this handbook.) Rule 7(b) also requires the party who is filing the motion to sign the motion in

accordance with Rule 11 of the Federal Rules of Civil Procedure. Rule 11 requires parties not to

file any motions that are based on facts that they know to be false, or which they did not fairly

investigate, or motions that have no reasonable legal basis. You should read Rule 11 before

signing and filing any pleading.

Civil Local Rules 7-1 through 7-10 give a detailed set of requirements for motions. Be

sure that you understand all of these rules before filing a motion. If you do not follow these

procedural rules, the court may refuse to hear your motion.

Civil Local Rules 7-2 and 7-5 require that all motions must contain the following

information:

1. Hearing date and time: In the caption, under the case number, you must include

the date and time that you want the court to hold a hearing on the motion. You should also state

the name of the motion in the caption, for example: “PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT.”
53

2. Notice of motion: The first paragraph of the motion must contain the notice of

motion, including the date and time of the hearing. The notice of motion is a statement to the

other parties telling them what type of motion you have filed and when you have asked the court

to hold a hearing on the motion.

3. Statement of purpose: In the second paragraph, you must give a brief statement

of what you want the court to do.

4. Memorandum of points and authorities: The remaining paragraphs are the

memorandum of points and authorities in support of your motion, which must comply with Civil

Local Rule 7-4(a). The memorandum of points and authorities is your argument why the court

should grant your motion. The memorandum of points and authorities is also sometimes referred

to as a “brief.” Civil Local Rule 7-4(a) requires the memorandum of points and authorities to

including the following:

a. A table of contents and a table of authorities, if the memorandum is longer than

ten pages. A table of authorities is a list of all the laws, rules, and cases that you have

mentioned, indicating the page of your memorandum where each one is mentioned. Every

mention of a law, rule or case is referred to as a “citation.” When you mention a law, rule or

case in a memorandum, you are citing that law, rule or case. You do not have to provide the

court with copies of the laws, rules, or cases that you have cited in your memorandum, unless the

court asks for them. 

When citing a case, use the format that is required by the court. For example, if you are

citing a case from the Northern District of California, the rules require that the citation be as

follows (you’ll need to fill in the numbers for everything that appears in brackets): [the volume

number of the Federal Supplement (the book) in which the case appears] F. Supp. [the number

of the page where the case starts], [the number of the page where the point you are citing

appears] (N.D. Cal. [the year the case was decided]). An example of a complete citation, using

the Northern District of California format, would look like the following:

Smith v. Jones, 131 F. Supp. 2d 1154, 1156 (N.D. Cal. 2000). 

b. A statement of the issues you want the court to decide;

c. A brief statement of the facts that are relevant to your motion; and

d. Your argument why the court should grant the motion, with citations to the

relevant law and facts.

5. Declaration(s): If your motion relies on the facts of the lawsuit, you must also

provide the court with evidence that those facts are true. The way you provide evidence to the

court in support of your motion is by filing one or more declarations. A declaration is a written

statement signed under penalty of perjury by a person who has personal knowledge that what he

or she states in the declaration is true. Declarations may contain only facts, and may not contain

law or argument. If the issue is not factual, or if the person signing the declaration does not

explain how he or she personally knows that each statement in the declaration is true, then it may

not be considered by the Court. 
54

The first page of each declaration must contain the caption of the case, and include, under

the case number, the name of the document, for example “DECLARATION OF JOHN SMITH

IN SUPPORT OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.” The declaration

should consist of a series of numbered paragraphs, with each paragraph containing a different

fact. At the end of the declaration, you must include the following language:

a. If the declaration is being signed in the United States, the language must read: “I

declare under penalty of perjury that the foregoing is true and correct. Executed on (insert the

date the document is signed).”

b. If the declaration is being signed outside of the United States, the language must

read: “I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct. Executed on (insert the date the document is signed).”

Below that language, the person whose statements are included in the declaration (the

“declarant“) must sign and date it.

6. Proposed order: You must also include with your motion a proposed order for

the court to sign. The first page of the proposed order must contain the caption of the case, and

under the case number, you must write the title: “[PROPOSED] ORDER.” The proposed order

must contain the exact language that you want the court to sign. At the end you must include a

line for the court’s signature. If the court grants your motion, it may sign your proposed order,

or it may write its own order.

Civil Local Rule 7-2(b) requires that motions must be no more than twenty-five pages

long. Motions that exceed the page limit may not be accepted or the extra pages might not be

read.

All motions must be served on all of the other parties to the lawsuit as soon as the motion

is filed.

How do I choose a hearing date?

When you choose a hearing date, the first thing to do is to consult your judge’s standing

order to find out which day of the week your judge holds hearings. Each judge holds hearings

on a certain day every week. For example, some judges hold hearings on motions in civil cases

only on Fridays at 9:00 a.m. Once you determine what day and time your judge holds hearings

on motions, you do not need to contact that judge to reserve a hearing date. 

Civil Local Rule 7-2(a) requires that, unless otherwise ordered or permitted by the judge

or the Civil Local Rules, all motions must be filed and served on the other parties no less than

thirty-five days (five weeks) before the hearing date. You should simply choose the judge’s date

for hearing civil motions that is at least thirty-five days from the date you want to file and serve

your motion. Also, as a courtesy, you should call the other party’s attorney and try to pick a date

when both of you are available. You then should put that hearing date in your caption and notice

of motion. If the court is unable to hear the motion on that date or if the attorney on the other

side has a very good excuse why they cannot be there, the Court will set a new hearing date,

usually on a date that is convenient for everyone.
55

What are the requirements for Opposition Briefs?

Opposition briefs must follow the same format as motions, with the following

exceptions:

1. In the caption of the document, under the case number, put the title:

“OPPOSITION TO [name of motion]” and the date and time the moving party has chosen for the

hearing.

2. You do not need to include a notice of motion.

3. The memorandum of points and authorities should explain the reasons why the

motion should be denied, with citations to the appropriate law and facts.

4. The proposed order should contain the language that you want the court to sign

denying the motion.

5. If you do not oppose the motion, Civil Local Rule 7-3(b) requires you to file a

Statement of Nonopposition with the court no later than the date the opposition brief is due. A

Statement of Nonopposition can be very short, for example: “Plaintiff does not oppose

defendant’s motion to compel production of documents.”

Civil Local Rules 7-3(a) and 7-4(b) require that opposition briefs must be filed and

served no later than twenty-one days (three weeks) before the hearing date.

What are the requirements for Reply Briefs?

Reply briefs must follow the same format as motions, with the following exceptions:

1. In the caption of the document, under the case number, put the title: “REPLY

BRIEF IN SUPPORT OF [name of motion]” and the date and time the moving party has chosen

for the hearing.

2. You do not need to include a notice of motion.

3. The memorandum of points and authorities should address only the arguments

raised in the opposition brief. You should not repeat the arguments you made in the motion,

except to the extent it is necessary to explain why you believe the arguments in the opposition

brief are wrong.

4. In your reply brief, you may not include new arguments in support of your

motion. Because the opposing party usually is not allowed to file a response to a reply brief, it

is unfair to include new arguments in your reply brief. Therefore, in your reply brief, you may

only include arguments explaining why you believe the argument in the opposition brief is

wrong.

5. You do not need to file an additional proposed order unless you want to change
56

the proposed order that you filed with your motion.

Civil Local Rules 7-3(c) and 7-4(b) require that reply briefs must be filed and served no

later than fourteen days (two weeks) before the hearing date.

What if the motion is urgent and needs to be decided in less than thirty-five days?

Sometimes a motion raises an urgent issue that needs to be decided very quickly. You

have three ways you may be able to obtain a hearing date that is less than thirty-five days from

the date your motion is filed.

1. Stipulation to shorten time: Civil Local Rules 6-1(b) and 6-2 state that if both

sides agree that the matter should be heard quickly, you may submit a written agreement (called

a “stipulation“) for the court’s approval. A stipulation is nothing more than a written agreement

signed by all of the parties to the lawsuit or their attorneys. The stipulation should explain why

the matter is urgent and propose a faster schedule for briefing and hearing the motion. With the

stipulation, you also must file a declaration that:

• Explains in detail the reasons why you are requesting that the motion be heard on

a faster schedule;

• States all previous time modifications that have been made in the case, whether

by stipulation or court order; and

• Describes the effect the proposed time modification would have on the schedule

for the case.

Under Civil Local Rule 7-11, a proposed order may be submitted with the stipulation. 

The proposed order can consist of a paragraph at the end of the stipulation, after the signatures of

the parties or their lawyers, stating: “PURSUANT TO STIPULATION, IT IS SO ORDERED,”

with spaces for the date and the signature of the judge.

After you file the stipulation, the judge may grant, deny, or modify your request.

2. Motion to shorten time: If both parties cannot agree that the motion is urgent,

you can file a motion to shorten time. A motion to shorten time is a motion asking that the court

hear another motion on a faster than normal schedule.

Under Civil Local Rule 6-3(a), a motion to shorten time can be no longer than five pages

long. Civil Local Rule 6-3(a) also requires that a motion to shorten time must be accompanied

by a proposed order, and a declaration that:

• Explains in detail the reasons why the motion should be heard on a faster than

normal schedule;

• Describes the efforts you have made to obtain a stipulation from the other parties

to the lawsuit;

• Identifies the harm that would occur if the motion is not heard on a faster than

normal schedule;
57

• Describes your compliance with Civil Local Rule 37-1 (requiring the parties to

negotiate with each other to try to resolve discovery disputes before filing a motion), if it is

necessary;

• Describes the nature of the dispute addressed in the underlying motion and briefly

summarizes the position each party has taken;

• Discloses all previous schedule adjustments in the case, whether by stipulation or

court order; and

• Describes the effect the requested schedule adjustments would have on the

schedule for the case.

You must deliver a copy of the motion to shorten time, the proposed order, and the

declaration to all of the other parties the day the motion is filed.

Any 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 long 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 the other

parties on the day the opposition is filed.

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

After the court receives a motion to shorten time and any opposition to the motion, it may

grant, deny, or modify the requested time change or schedule the motion for additional briefing

or a hearing.

3. Ex Parte Motion. Civil Local Rule 7-10 defines an ex parte motion as a motion

that is filed without giving notice to the opposing party. You may file such a motion only if a

statute, Federal Rule, local rule or standing order authorizes the filing of an ex parte motion and

you have complied with all the applicable requirements. Ex parte motions are rare.

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 if you show a good reason why you need it. Under Rule 6(b), the court

can grant extra time with or without a motion or notice to the other parties if you make the

request before the original deadline passes. If you wait until after the original deadline passes

before asking for extra time, you must make a motion and show that excusable neglect caused

you to miss the deadline. The court cannot extend the time for taking any action under Rules

50(b) and (c)(2), 52(b), 59(b), (d) and (e), and 60(b), except to the extent and under the

conditions stated in each of those rules.

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. The exception is that a stipulation to extend time that affects a hearing or other
58

proceeding that has already been scheduled on the court’s calendar must be filed no later than

ten days before the scheduled event.

You can also file a motion to extend time, under Civil Local Rule 6-3. The same rules

for motions to shorten time also apply to motions to extend time, except that a motion to extend

time does not need to:

1. Describe what you have done to comply with Civil Local Rule 37-1, or

2. Describe what is in dispute in the underlying motion and briefly summarize the

position each party has taken.
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CHAPTER 8 - 

HOW CAN I MAKE SURE THAT I KNOW ABOUT 

EVERYTHING THAT IS HAPPENING IN MY CASE?

Although every document that is filed in a lawsuit must be served on all of the parties,

sometimes mistakes are made or documents get lost in the mail. For this reason, it is a good idea

to check the docket or the permanent case file with the court clerk every so often to make sure

that:

1. Every document you filed has been entered on the docket;

2. You have received copies of every document that everyone else has filed; and

3. You are aware of every order that the court has issued.

The original copy of every document that is filed with the court is kept in a permanent

file at the court clerk’s office. Each case has its own file.

The docket is the computer file for each case, maintained by the court, which lists the

title of every document filed, the date each document was filed, and the date each document was

entered into the docket. It does not contain the text of those documents. To review the text of

the documents, you must visit the clerk’s office in person and ask to see the case file.

If you need to know specifics about your case – for example, if you have a question about

the schedule for a hearing – a call should be placed to the publicly listed courtroom deputy

for each judge. Calls to the judge, the judge’s chambers or office, or to the judge’s other staff

are strongly discouraged. Neither the judge nor the judge’s staff is allowed to give you legal

advice, or to talk with you about the merits of your case outside of the courtroom. 

How do I review the case file?

To review the case file for your lawsuit, all you need to do is visit the clerk’s office

during business hours in the courthouse where your lawsuit is being litigated. For example, if

the judge who is assigned to your case is in San Francisco, you must visit the clerk’s office in the

San Francisco courthouse to view your case file.

Any case file you request will be made available to you at the time you request it, unless

someone else is already using the file. There is no need to call ahead to let the court know that

you will be coming to look at a case file.

Cases are filed in the clerk’s office by case number, so make sure that you bring the case

number with you. The case number is stamped on the complaint on the caption page. It will

look something like this: C-02-0001 MHP. If the case number begins with “C,” it is a civil

case. If it begins with “CR,” it is a criminal case. The next two digits are the last two digits of

the year in which the case was filed; a case number that begins “C-02” is a civil case that was

filed in 2002. The next set of numbers is a unique number which identifies a particular case. 

The initials at the end are the initials of the judge that has been assigned to your case.
60

If you do not have the case number, you can find it by looking up the names of the parties

on the PACER system on any computer with a modem or an Internet connection. You can also

find the case number by looking up the names of the parties on a computer system that is

available for use in the clerk’s office.

In order to view a case file, you must have a valid government-issued picture

identification card. Acceptable identification cards include a state driver’s license, a California

identification card, a U.S. passport, or a federal, state, county or city employee card. Credit

cards, car keys, or student identification cards will not be accepted.

Under no circumstances may you take the case file out of the clerk’s office. Instead, you

must look at the case file while you are in the clerk’s office.

If you need to make a copy of a document from the case file, there are copy machines

available for your use in the clerk’s office for twenty cents per page. Clerk’s office personnel

will also copy small orders for you, but at fifty cents per page.

In San Francisco or San Jose, you also can have the court’s designated copy services do

your copying for you. This is often more efficient if you have large amounts of copying to do,

but you have to allow additional time for the copying to be completed. In San Francisco,

copying orders can be placed through Eddie Juhn by calling 415-317-5556, or by faxing him at

415-487-1031. In San Jose, copying orders can be placed through Pacific Research and

Retrieval at 408-295-6800. These services are not available in Oakland.

You can also make arrangements to bring your own personal copy machine to the clerk’s

office if you call the clerk’s office in advance.

After a case is over, the 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.

How do I review the docket?

There are several ways to obtain docket information:

1. Docket information is available through the PACER system on the internet at

http://pacer.cand.uscourts.gov. PACER stands for “Public Access to Court Electronic Records.”

2. If you do not have internet access, your computer can also reach a dial-up version

of the PACER system by modem at (888) 877-5883 or (415) 522-2144.

3. If you do not have access to a computer, you can use the public computers in the

clerk’s office in all three courthouses (San Francisco, Oakland, San Jose) to obtain docket

information.

PACER contains docket information for the Northern District of California for all civil

cases filed since August 1990. Docket information for criminal cases is available for all cases

filed since August 1991. Dockets for miscellaneous cases are available for the same date ranges. 

Docket information for some, but not all, cases filed before those dates is also available.
61

Dockets are updated every night. The updates are typically, but not always, complete by

midnight Pacific Standard Time. Therefore, when you retrieve a PACER docket, you typically

get the docket as it stood at the close of the previous business day.

PACER users can search by case number or party name, or for all cases filed within a

specified range of dates. The PACER system allows users to:

1. Review the docket online;

2. Print a copy of the docket; and

3. Download docket information for later review.

PACER also has available a U.S. party/case index, which can be used to search for

specific parties in federal court cases nationwide. Registered PACER users may find the index

at http://pacer.psc.uscourts.gov/uspci.html or by dialing in through a modem at (800) 974-8896.

You must register to become a PACER user before you can use any version of the

PACER system. You can register online to become a PACER user at

http://pacer.psc.uscourts.gov. You can also call the PACER Service Center at (800) 676-6856 to

obtain a PACER registration form by mail. There is no cost for registering.

Once the registration form is received by the PACER Service Center, you will receive a

login and password in the mail within about two weeks. Logins and passwords will not be faxed,

emailed, or given out over the phone.

Internet access to PACER is billed at seven cents per page of information responding to

your query. A page is defined as fifty-four lines of data. There is not an additional per-minute

charge.

Dial-up access to PACER via modem is billed at sixty cents per minute of access time. 

Billing begins after a successful log-in. There is not an additional per-page charge.

For either internet access or dialup access to PACER, you will be billed quarterly by the

PACER Service Center.

The public computers in the clerk’s office do not use the PACER system, and you do not

have to be registered on PACER to use them. There is no charge to look up docket information

on those computers. However, if you want to print out docket information, there is a charge of

fifty cents per page.

If you cannot afford to pay the PACER access fees, you may file a motion with the court

asking to be excused from paying those fees. A court may, for good cause, exempt persons from

the electronic public access fees, in order to avoid unreasonable burdens and to promote public

access to such information. 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, you must send a copy of the court’s order to the PACER Service Center,
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P.O. Box 780549, San Antonio, Texas, 78278-0549, so that you will not be billed to use the

PACER system. If the court denies your motion, you must pay the PACER fees in order to use

the PACER system.

If you have problems with your PACER account, please call the PACER Service Center

at (800) 676-6856.

If you have problems with the Northern District of California’s PACER operations,

please call us at (866) 638-7829. We cannot help with problems about your PACER account.
63

CHAPTER 9 - 

WHAT IS A CASE MANAGEMENT OR STATUS CONFERENCE, 

AND HOW DO I PREPARE FOR IT? 

What is a case management conference?

A case management conference is a meeting with the judge at which the judge, with the

help of the parties, sets a schedule for the case. The initial case management conference is held

early on. For example, at that initial conference, the judge will usually set a schedule for

completing discovery (that is, exchanging information that could be used as evidence), a

deadline for filing motions, and a trial date. Later case management conferences may be held to

review the progress of the case, and change the schedule as necessary. 

What is a status conference?

A status conference can also be called a “subsequent case management conference.” Regardless

of which term is used, it is just a conference that the judge holds after an initial case management

conference has happened, to check on the status of the case. The rule providing for subsequent

case management conferences is Civil Local Rule 16-10(c). Some judges hold status or

subsequent case management conferences regularly, while other judges schedule them only

when there is a particular need. Generally, a subsequent case management conference is a

chance for the parties to tell the judge about the progress of their case, and about any problems 

they have had in preparing for trial or in meeting the original schedule. In addition, there is a

pretrial conference held shortly before trial, where the judge and the parties decide the

procedures for the upcoming trial.

When is the initial case management conference?

Under Civil Local Rule 16-2(a), when the complaint is filed, the plaintiff is given a copy

of an Order Setting Initial Case Management Conference. The plaintiff must serve that Order on

the defendants. The Order sets the date for the initial case management conference, which is

usually held around 120 days after the complaint is filed.

Does every case have a case management conference?

No. Certain types of cases, which are listed in Civil Local Rules 16-4, 16-5, and 16-6, do

not have case management conferences.
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What should I do before the initial case management conference?

There are several things the parties should do to prepare before the initial case

management conference. As explained in more detail below, the parties are expected to call

each other or meet in person, in a process that is called meeting and conferring, and try to agree

on a number of issues. These include: making a single proposal for how and when discovery

will be done (if a joint proposed discovery plan is required); deciding whether to submit the case

to arbitration, mediation, or early neutral evaluation; and preparing the joint case management

statement. Among other things, the joint case management statement tells the court the results of

your meetings and what positions you have both taken about issues such as discovery and

arbitration.

The requirements for case management conferences are explained in detail in Civil Local

Rules 16-1 through 16-10, and in Rules 16(b) and 26(f) of the Federal Rules of Civil Procedure. 

You should also check your judge’s standing order, which may have additional rules. 

Why do I have to meet and confer?

The point of meeting with the other side and conferring about issues like scheduling,

discovery and resolving the case is to save everyone time, work out what you can before going to

court, and to make sure both sides are clear on each other’s views. 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)(E), all parties must meet and confer at least 21 days before the case management

conference to:

1. Discuss the nature and basis of their claims;

2. Discuss whether there is a way to resolve the case quickly and informally through

a settlement;

3. Arrange for initial disclosure of information by both sides as required by Rule

26(a)(1). This includes exchanging the names and contact information of every person who is

likely to have information about the issues, certain documents (described in Rule 26(a)), and

various other information described in that section; and

4. Develop a proposed discovery plan.

The meet-and-confer is also referred to as a “Rule 26(f) conference.”

What is the proposed discovery plan?

The proposed discovery plan is a proposal that the parties make to the court, about how

each thinks discovery should be conducted in the case. Federal Rule of Civil Procedure 26(f)

requires that the parties submit a joint proposed discovery plan, along with their joint case

management conference statement and proposed case management order. This plan must be

prepared in collaboration with the lawyers for the other party or parties. The court will review

the plan, and discovery will proceed as the judge decides and sets out in the case management

order.
65

The parties must make a good faith effort to agree on a joint proposed discovery plan,

which must include each parties’ views and proposals about:

1. Any changes that should be made in the timing, form, or requirement for

disclosures under Rule 26(a), including a statement as to when disclosures under Rule 26(a)(1)

were made or will be made;

2. The subjects on which discovery may be needed, when discovery should be

completed, and whether discovery should be done in phases or be limited to or focused upon

particular issues;

3. Any changes that should be made in the limitations on discovery imposed under

the Federal Rules of Civil Procedure or the Civil Local Rules, and what other limitations should

be imposed; and

4. Any other orders that should be entered by the court under Rule 26(c) or Rule

16(b) and (c).

What is the case management statement?

Civil Local Rule 16-9 requires the parties to file a joint case management statement and

proposed case management order (all in one document) on the form approved by the Court. The

clerk’s office has both the form, and instructions for preparing a case management statement and

proposed case management order. The form and the instructions are provided to the plaintiff at

the time the complaint is filed. You can also find the form in Appendix A to the Civil Local

Rules.

Under Civil Local Rule 16-9 and Rule 26(f) of the Federal Rules of Civil Procedure, the

joint case management statement and proposed case management order must be filed no later

than seven (7) days before the case management conference, unless the judge orders otherwise.

This Court’s form requires you to describe the results of your discussions with the other

side about ADR, or alternative dispute resolution, in the joint case management statement.

The joint case management statement and proposed order should be prepared and filed

jointly by all of the parties. However, if preparing a joint statement can’t be done because of

some special hardship, then the parties may file separate case management statements. Those

separate statements must describe the undue hardship that prevented them from preparing a joint

statement. Although the court allows parties to file separate case management statements, it is

better for the parties to file a joint statement, because it gives the parties more control. If the

parties cannot agree on a schedule for the case, the judge may impose his or her own schedule,

which may not be the schedule that either party would have wanted.
66

What about ADR and arbitration?

The joint case management statement also must include a section entitled “Alternative

Dispute Resolution” or ADR. ADR is a way of saving time and money by working out parties’

differences without going through all of the formality of civil litigation and trial. This Court

offers different kinds of ADR as an alternative to a formal trial; one of them is arbitration, where

the parties argue their positions to a neutral person who is not a judge, but is usually a lawyer. 

This Court’s ADR programs are described in a handbook entitled “Dispute Resolution

Procedures in the Northern District of California,” which is provided to you when the complaint

is filed. You can get more copies of the handbook at the clerk’s office, and you can also find the

same information on the Court’s website at http://www.adr.cand.uscourts.gov.

In some cases, you have to try ADR first. Under ADR Local Rule 4-2, certain types of

cases are automatically referred to a court ADR program called “non-binding arbitration.” Nonbinding arbitration is like a very quick mini-trial, which allows the parties to see how a judge

(known as an arbitrator) might decide the case. While the parties do not have to accept the

arbitrator‘s decision, it often helps parties decide to settle their differences. Under Civil Local

Rule 16-8 (b), if your case is not referred to non-binding arbitration, you must sign, serve and

file an ADR Certification (along with an extra copy for the court’s ADR Unit) by the date given

in your Order Setting Initial Case Management Conference. The form for the ADR Certification

can be found at Appendix C to the Civil Local Rules. By signing the ADR Certification, you are

telling the Court that:

1. You have read the handbook entitled “Dispute Resolution Procedures in the

Northern District of California” or certain portions of the ADR internet site, at

http://www.adr.cands.uscourts.gov, described in Civil Local Rule 16-8(b);

2. You have met with the other side and discussed the available ADR programs

provided by the Court and by other ADR providers; and

3. You have personally considered whether your case might benefit from any of

these ADR programs.

You must attach to the ADR Certification either a “Stipulation and (Proposed) Order

Selecting ADR Process” or a “Notice of Need for ADR Phone Conference” on the form

established by the Court. You can find these forms at Appendix C and D to the Civil Local

Rules.
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What happens at the initial case management conference?

At the case management conference, the judge will discuss the case management

conference statement with the parties, and may also discuss other issues in the case. The judge is

also likely to discuss the form of ADR 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. Under Civil Local Rule 16-10(a), requests to participate in the case

management conference by telephone must be filed and served no later than five (5) days before

the conference, or at the time stated in your judge’s standing order. Whether you attend the case

management conference in person or by telephone, you must 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. Sometimes the judge will sign the

proposed case management order submitted by the parties. Sometimes the judge will change

that order or write an entirely new order. The case management order signed by the judge will

control the schedule for the rest of the case unless it is changed later by the judge.

What should I do before 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 joint supplemental case management statement at least ten (10)

days before the conference. The joint statement must report progress or changes in the case

since the last statement was filed, identify any problems with meeting the existing deadlines, and

suggest any changes to the schedule for the rest of the case. Your judge’s standing order may

require other things as well. You should check the judge’s standing order. You can find a form

for the joint supplemental case management statement and proposed order at Appendix B to the

Civil Local Rules. You must attend the subsequent case management conference in person,

unless the judge permits you to appear by telephone, and you must come to court prepared to

discuss all aspects of the case with the judge.
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CHAPTER 10 - 

WHAT INFORMATION DO I HAVE TO GIVE TO THE OTHER PARTIES, 

EVEN IF THEY DON’T ASK FOR IT?

Before the parties begin the process of discovery, or the formal process of information

exchange governed by certain procedural rules, they are required to give each other certain

classes of information even if not requested. The information you have to give the other parties,

even if they don’t ask for it, is called a “disclosure.” Rule 26(a) of the Federal Rules of Civil

Procedure lists three types of disclosures which you must provide to the other parties at different

times during the course of the lawsuit: (1) initial disclosures; (2) expert disclosures; and (3)

pretrial disclosures.

What are initial disclosures?

Initial disclosures are the ones you have to serve early in the case. 

Timing: Initial disclosures must be served within fourteen days after your Rule 26(f)

meet and confer, unless:

1. The parties stipulate to a different time; or

2. The court orders a different time; or

3. A party objects during the conference that initial disclosures are not appropriate

under the circumstances of the lawsuit, and states the objection in the Rule 26(f) discovery plan.

Initial disclosures are required in all cases, except for the categories of cases listed in

Rule 26(a)(1)(E) of the Federal Rules of Civil Procedure. 

Content: Unless your case is in one of the categories listed in Rule 26(a)(1)(E), you must

serve the following information on the other parties in your lawsuit:

1. The name and, if known, the address and telephone number of each individual

likely to have information that you may use to support your claims and defenses, unless that

information will be used solely for impeachment. You also must identify the type of information

that each individual has. “Information used solely for impeachment“ is information that is used

only to attack the believability or credibility of a witness, rather than information used to prove

your position directly.

2. A copy, or a description by category and location, of all documents or other

things that you have in your possession or control that you may use to support your claims or

defenses, unless they will be used solely for impeachment.

3. A calculation of any category of damages you claim to have suffered. You also

must make available to the other parties, for inspection and copying, all documents and other

things that support your calculation, including documents and other things showing the nature

and extent of your injuries. You do not, however, have to disclose documents and other things

that are privileged or otherwise protected from disclosure.

4. You also must make available to the other parties, for inspection and copying,
69

any insurance agreement which may apply to any award of damages in the lawsuit.

Form: Under Rule 26(a)(4) and 26(g) of the Federal Rules of Civil Procedure, these

initial disclosures must be made in writing, and must be served on all of the other parties to the

lawsuit. They must be signed by you, and must include your address. By signing the disclosure,

you are certifying to the court that the disclosure is complete and correct as of the time it is

made, to the best of your knowledge.

Additional requirements: Your initial disclosures must be based on the information that

is reasonably available to you. You must serve your initial disclosures even if:

1. You have not fully completed your investigation of the case; or

2. You think another party’s initial disclosures are inadequate; or

3. Another party has not made any initial disclosures.

Rule 26(e)(1) of the Federal Rules of Civil Procedure imposes on you a duty to

supplement your initial disclosures if you learn that the information you disclosed is incomplete

or incorrect, and if the additional or corrective information has not otherwise been made known

to the other parties during the discovery process or in writing.

What are expert disclosures?

In an expert disclosure, you reveal to the other parties the identity of any expert witness

you may use at trial. Expert disclosures are required by Rule 26(a)(2) of the Federal Rules of

Civil Procedure. An expert witness is a person who has scientific, technical, or other specialized

knowledge that can help the court or the jury understand the evidence.

If you hired or specially employed the expert witness to give testimony in your case, or if

the expert witness is your employee and regularly gives expert testimony as part of his or her

job, this disclosure also must be accompanied by a written report prepared by and signed by the

expert witness, unless the court orders otherwise, or the parties stipulate otherwise. This written

report is usually referred to as an “expert report.”

Timing: Expert disclosures must be made by the time ordered by the court. If the court

does not set a time for expert disclosures and the parties do not stipulate to a date for expert

disclosures, the disclosures must be made at least ninety days before the trial date. If your expert

disclosures are intended solely to contradict or rebut another party’s previously disclosed expert

disclosures, your disclosures must be made no later than thirty days after the disclosure made by

the other party.

Content: Under Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, the expert

report must contain:

1. A complete statement of all opinions the expert witness intends to give at trial,

and the basis and reasons for those opinions;
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2. The data or other information considered by the expert witness in forming those

opinions;

3. Any exhibits to be used as a summary of, or support for, the opinions;

4. The qualifications of the expert witness, including a list of all publications

authored by the witness within the preceding ten years;

5. The compensation to be paid for the study and testimony of the expert witness;

and

6. A list of any other cases in which the witness has testified as an expert at trial or

by deposition within the preceding four years.

Form: Under Rules 26(a)(4) and 26(g) of the Federal Rules of Civil Procedure, these

expert disclosures must be made in writing and must be served on all of the other parties to the

lawsuit. They must be signed by you and the expert witness, and include your address. By

signing the disclosure, you are certifying to the court that the disclosure is complete and correct

as of the time it is made, to the best of your knowledge.

Additional requirements: Rule 26(e)(1) of the Federal Rules of Civil Procedure

imposes on you a duty to supplement your expert disclosures if you learn that the information

you disclosed is incomplete or incorrect, and if the additional or corrective information has not

otherwise been made known to the other parties during the discovery process or in writing. If

your expert is required to prepare an expert report under Rule 26(a)(2)(B), this duty extends to

supplementing both the expert report and any information provided by the expert during a

deposition. Any supplement to your expert disclosures must be served no later than the time

your pretrial disclosures under Rule 26(a)(3) are due.

What are pretrial disclosures?

In a pretrial disclosure each party files with the court and serves on the other parties

certain kinds of information about evidence it may present at trial. Evidence that will be used

solely for impeachment is not included. The requirements for pretrial disclosures are governed

by Rule 26(a)(3) of the Federal Rules of Civil Procedure.

Timing: These pretrial disclosures must be made at least thirty days before trial, unless

otherwise ordered by the court.

Content: The following information about evidence you may use at trial should be

included in your pretrial disclosures:

1. The name and, if not previously provided, the address and telephone number of

each witness. You must identify separately the witnesses you intend to present at trial and those

whom you may present at trial if the need arises.

2. The identity of those witnesses whose testimony you expect to present at trial by

means of a deposition, rather than by having the witness testify in person. You must also serve a

transcript of the relevant portions of the deposition testimony.
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3. An appropriate identification of each document or other exhibit, including

summaries of other evidence, that you may use at trial. You must identify separately the exhibits

you intend to use at trial and those which you may use if the need arises.

Form: Under Rule 26(a)(4) and 26(g) of the Federal Rules of Civil Procedure, these

pretrial disclosures must be made in writing and must be served on all of the other parties to the

lawsuit. They must be signed by you, and include your address. By signing the disclosure, you

are certifying to the court that the disclosure is complete and correct as of the time it is made, to

the best of your knowledge.
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CHAPTER 11 - 

WHAT IS DISCOVERY?

“Discovery“ is the process by which parties exchange information about the issues in

their case before trial. Several different ways to ask for and get this information are described

below. These include depositions, interrogatories, requests for document production, requests

for admission, and physical or mental examinations. Each of these methods is explained in more

detail in this chapter.

“Depositions” are question-and-answer sessions held before trial, in which one party to a

lawsuit asks another person questions about the issues raised in the lawsuit. 

“Interrogatories“ are written questions served on another party to the lawsuit, which must

be answered under oath. 

In a “request for document production,” you write out descriptions of documents you

think another party has that would provide information about the issues in the lawsuit, and ask

them to provide you with copies of any of their documents that satisfy your descriptions. 

In a “request for admissions,” you write out statements of fact you believe are true, and

ask the other party to admit that those statements are true or to admit the application of any law

to any fact. 

A mental examination is an examination by an expert of another person’s mental

condition. 

A physical examination would usually be an examination of a person’s physical

condition. 

You may use the different methods of discovery in any order or at the same time. The

fact that the other party asks you for information does not affect your right to ask for information

from them, or mean that you have to wait to make your requests. 

Are there any limits to discovery?

Under Rule 26(b) of the Federal Rules of Civil Procedure, any party may ask for another

party to disclose any non-privileged matter that is relevant to the claim or defense of any party to

the lawsuit. In other words, you may get (and, if asked, you must provide) any material that is

reasonably likely to lead to the discovery of admissible evidence. The court can limit the use of

any discovery method, however, if it finds that:

1. The discovery sought unreasonably seeks information that has

already been provided, or that is already available from some other source which

is more convenient, less burdensome, or less expensive; or

2. The party seeking discovery has already had enough chances to get

the information sought; or

3. The burden or expense of the proposed discovery outweighs its

likely benefit, taking into account the needs of the case, the amount of money the

parties are fighting over, the parties’ resources, the importance of the issues in the

litigation, and the importance of the proposed discovery in resolving the issues.

Sometimes you might request information from the other side and get an answer back

that you have asked for privileged information, or information you cannot have because it is

protected by various confidentiality agreements. In addition, there are some limits to how many

requests you can make. These limits are discussed in the more detailed explanation of each
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method of discovery.

When can discovery begin?

If your case is in one of the categories of cases listed in Rule 26(a)(1)(E) 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.

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:

1. Earlier discovery is allowed by another part of the Federal Rules of

Civil Procedure; or

2. A court issues an order that lets you take earlier discovery; or

3. All parties agree that discovery can be taken earlier.

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

DEPOSITIONS

How does a deposition work?

A deposition is a question-and-answer session before trial. One party to a lawsuit asks

another person, who is under oath, questions about the issues raised in the lawsuit. Rule 30 of

the Federal Rules of Civil Procedure explains the procedures for taking a deposition. 

When you get to ask someone questions about his or her knowledge of the case in a

deposition, that process of questioning is called deposing the person, or taking a deposition. 

The person who answers the questions in a deposition is referred to as the deponent. The

deponent answers all questions under oath, which means that he or she swears that all of the

answers are true. The deponent can be any person who may have information about the lawsuit,

including eye witnesses, expert witnesses, or another party to the lawsuit.

The questions and answers in a deposition must be recorded. The party taking the

deposition, the one asking the questions and seeking information, may choose the method for

recording the deposition. The deposition can be recorded in a written record, or videotaped. The

written record of a deposition is called the transcript of the deposition, and the person who

records what everyone says is usually referred to as a court reporter or a court stenographer. 

Rule 30(b) of the Federal Rules of Civil Procedure explains the ways the deposition can be

recorded, the role of a court officer in recording the deposition, and other important details. 

The person taking the deposition must pay the cost of recording the deposition.
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Do I need the court’s permission to take a deposition?

You usually do not need the court’s permission to take a deposition. However, under

Rule 30(a) of the Federal Rules of Civil Procedure, you do need the court’s permission to take a

deposition in any of the four following situations:

1. The deponent is in prison.

2. Your side of the lawsuit has already taken ten other depositions,

and the other parties have not stipulated in writing that you can take more

depositions. Rule 30(a) allows all of the plaintiffs, or all of the defendants, to

take no more than ten depositions without the court’s permission. For example, if

you are one of two plaintiffs, and the other plaintiff has taken nine depositions

and you have taken one deposition, neither you nor the other plaintiff can take

any more depositions without the court’s permission. 

3. The deponent has already been deposed in the same case, and the

other parties have not stipulated in writing that the deponent can be deposed

again.

4. You want to take a deposition before the parties’ “meet and

confer“ (a meeting that is required under Rule 26(f)), and the other parties will

not agree in writing to let you take the early deposition. However, this exception

has its own exception; you may not need to get court permission for an early

deposition if your notice of deposition contains a certification, with supporting

facts, that the deponent is expected to leave the United States and therefore will

be unavailable for deposition in this country after the Rule 26(f) meet and confer

occurs.

How do I arrange for a deposition?

Under Civil Local Rule30-1, the first thing you must do is consult with opposing counsel

to choose a convenient time for the deposition. The convenience of the lawyers, the parties, and

the witnesses must be taken into account, if possible.

Once you have picked a convenient time for the deposition, you must also give written

notice of the deposition to the deponent, and to all of the other parties in your lawsuit, a

reasonable amount of time before the deposition. This document is referred to as the notice of

deposition. You must serve the notice of deposition on the deponent and all of the parties’

counsel, even if you have already discussed the deposition with them. The notice of deposition

may be served by any of the methods listed in Rule 5(b) of the Federal Rules of Civil Procedure,

including service by mail. You should not file the notice of deposition with the court.

What do I say in a notice of deposition?

Under Rules 30(b) and 26(g)(2) of the Federal Rules of Civil Procedure, the notice of

deposition must include:
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1. The time and place where the deposition will be held.

2. The name and address of the deponent, if known. If you don’t

know the name of the deponent, you must describe the person well enough that

the other side can identify the person you wish to depose (for example, you may

not know a witness’s name, but know that he was “the store manager who was on

duty that evening after 6:00 p.m.”). If you do not know which person at a

business or government agency has the information that you need, Rule 30(b)(6)

of the Federal Rules of Civil Procedure allows you to name the business or

government agency as the deponent, and describe the subjects you want to discuss

at the deposition. The business or government agency then must tell you the

persons who will testify on its behalf, and the subjects on which each person will

testify.

3. The method by which the deposition will be recorded.

4. Your address and signature. By signing the notice of deposition,

you are certifying to the court that:

a. The deposition you are requesting is either allowed by the

Federal Rules of Civil Procedure and existing law, or you have a good

faith argument for extending, modifying, or reversing existing law to

allow that deposition; and

b. You are not serving the notice of deposition for any

improper purpose, such as to harass anyone or to cause unnecessary delay

or to needlessly increase the cost of the litigation; and

c. Taking this deposition is not unreasonable or unduly

burdensome or expensive, in light of the needs of the case, the discovery

that has already been taken in the case, the amount in controversy, and the

importance of the issues at stake in the litigation.

In addition, as noted in an earlier discussion, in some unusual circumstances your notice

of deposition also has to explain why you don’t think you need a court order to take an early

deposition of the particular person. 
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When do I need to get a subpoena for a deposition? 

You do not need a subpoena to depose a party; you can just go through the procedure to

file a notice of deposition described above. If the deponent is not a party to the lawsuit, a socalled “non-party deponent“ or a “non-party witness,” you must also serve the deponent with a

subpoena. A subpoena is a document issued by the court which requires a person to appear for a

court proceeding at a specific time and place. Rule 45 of the Federal Rules of Civil Procedure

discusses the requirements for subpoenas.

You can get a blank subpoena from the clerk’s office for any deposition that will take

place in the Northern District of California. If the deposition is going to be taken outside the

Northern District of California, however, you must get the subpoena from a different court. In

that case, you should contact the court in the district where the deposition is going to take place. 

A subpoena may be served (that is, hand-delivered) on the deponent by any person who is not a

party and who is at least 18 years old. A subpoena must be hand-delivered to the deponent,

along with the fees and mileage allowance required by law. Under 28 U.S.C. § 1821, a nonparty deponent must be paid $40 per day for deposition testimony.

If the non-party deponent travels to the deposition by mass transit, such as by bus or by

train, you also must pay the deponent‘s actual travel expenses, as long as he or she takes the

shortest practical route and travels at the most economical rate reasonably available. You do not

have to pay the travel expenses until the deponent provides you with a receipt or other evidence

of the actual travel cost.

If the non-party deponent does not travel to the deposition by bus, train, or other common

carrier, then you must pay a mileage fee. The mileage fee is set in 28 U.S.C. § 1821 and 41

C.F.R. § 301-10.303 at 36.5 cents per mile, plus any toll charges and parking fees.

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

After being served with a subpoena, a person can ask that the court quash the subpoena. 

Quashing basically means that the court decides that the person doesn’t have to obey the

subpoena. Therefore, if the court quashes the subpoena, the deponent does not have to appear

for the deposition at the time and place listed on the subpoena. 

Under Rule 45(c)(1) of the Federal Rules of Civil Procedure, you are required to take

reasonable steps to avoid imposing an undue burden or expense on any person that you subpoena

for a deposition. If the deponent thinks there is something improper in your subpoena, he can try

to get the court to quash it for that reason. In addition, under Rule 45(c)(3)(A)(ii), if your

deposition subpoena requires a non-party deponent to travel more than 100 miles from his or her

home or work address, and the deponent objects, the court must quash the subpoena. Therefore,

it is a good idea to take the deposition at a location within 100 miles of the non-party deponent‘s

home or business address.
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Can I ask a deponent to bring documents to a deposition?

If the deponent is a party to the lawsuit, Rule 30(b)(5) of the Federal Rules of Civil

Procedure lets you serve a request for document production along with the notice of deposition. 

Rule 34 of the Federal Rules of Civil Procedure states the rules for requests for document

production. Those rules are discussed in a separate section below, entitled “Requests for

Document Production.“

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

A “subpoena duces tecum“ is a court order requiring someone to give another person

copies of papers, books, or other things that the court orders. It is a discovery tool you can use

with a deposition, or by itself. If the deponent is not a party to the lawsuit, you must serve the

deponent with a subpoena duces tecum if you want the deponent to bring documents to the

deposition. 

Under Rule 30(b)(1), the documents you want the deponent to bring to the deposition

must be listed in both the notice of deposition and the subpoena duces tecum. Rule 45 of the

Federal Rules of Civil Procedure discusses the requirements for a subpoena duces tecum, and

those requirements are discussed in a separate section below, entitled “Requests for Document

Production.”

How long can a deposition last?

Under Rule 30(d)(2) of the Federal Rules of Civil Procedure, a deposition may last no

longer than seven hours. If a party thinks the deposition should go more than seven hours, they

must either get all parties to agree, or get authorization from 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 non-privileged matter that is relevant to the claim or defense of any party. A question

is relevant if it appears reasonably calculated 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. There are specific types of objections that are proper. You may, for example,

object to the form of a question (that is, the question is vague, the question is really several

questions all together, the question is argumentative), or you may object that the question asks

for information that you are not obliged by law to give. In most cases, the deponent still must

answer the question. Under Rule 30(d)(1), the deponent may refuse to answer a question only in

the following three situations:

1. When answering would violate a confidentiality privilege, such as the attorneyclient or doctor-patient privilege; or
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2. When the court has already ordered that the question does not have to be

answered; or

3. To let you present a motion to the court under Rule 30(b)(4). Rule 30(b)(4)

allows a deponent or a party to present a motion to the court arguing that the deposition should

be stopped, that certain questions should not be answered, or that some other limitation should

be placed on the way in which the deposition is being taken. The deponent or the party making

the motion must show that the deposition is being conducted in bad faith or in an unreasonable

manner to annoy, embarrass, or oppress the deponent or party.

Who is allowed to ask the deponent questions?

Under Rule 30(c) of the Federal Rules of Civil Procedure, any party may ask questions at

the deposition. Usually, the party who noticed the deposition asks all of their questions first. 

Then any other party may ask questions, including the attorney for the person being deposed.

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

Under Rule 30(e) of the Federal Rules of Civil Procedure, once the court reporter notifies

the deponent that the deposition transcript is completed, the deponent then has 30 days to review

the deposition transcript and to make changes. To make changes to the deposition, the deponent

must sign a statement listing the changes and the reasons for making them. The original

transcript is not actually changed, but the court reporter must attach the list of changes to the

official deposition transcript. That way the court can see where any changes are being made.

INTERROGATORIES 

What are interrogatories?

Interrogatories are written questions sent by one party to any other party to the lawsuit,

and these questions must be answered under oath. Unlike depositions, which can be taken of any

person with knowledge about a case, interrogatories can only be served on parties. Rule 33 of

the Federal Rules of Civil Procedure states the rules for serving interrogatories. Interrogatories

may be served by any of the methods listed in Rule 5(b) of the Federal Rules of Civil Procedure,

including service by mail.

Do I need the court’s permission to serve interrogatories?

Under Rule 33(a) of the Federal Rules of Civil Procedure, you do not need the court’s

permission to serve interrogatories unless you have already served 25 or more interrogatories on

the same party.

If you want to serve more than 25 interrogatories on a party, you must file a motion with

the court asking for the Court’s permission. Civil Local Rule33-3 requires that any motion to

serve additional interrogatories must be filed with a memorandum which lists each additional

interrogatory that you want to serve and explains in detail why you need to ask each additional

question.
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How many interrogatories can I serve?

As noted, under Rule 33(a), you can serve only 25 interrogatories on each party unless

you get permission from the court to serve more. Note that you can serve different

interrogatories on different parties. Thus, for example, if there are three defendants, the plaintiff

can serve up to 25 interrogatories on each of the three defendants without permission of the court

or the other parties.

Parties cannot get around the 25 interrogatory limit by putting several questions all

together. Each question is one interrogatory. If your questions have separate subparts, then each

subpart is counted as a separate interrogatory.

What kinds of questions can I ask?

Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, you may ask questions

about any non-privileged matter that is relevant to the claim or defense of any party. A question

is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence.

Are there any requirements for the form of interrogatories?

Usually, parties write out each interrogatory with a separate number.

Under Rule 26(g)(2) of the Federal Rules of Civil Procedure, you must sign the

interrogatories and state your address. By signing the interrogatories, you are certifying to the

court that:

1. The questions seek information that is allowed by the Federal

Rules of Civil Procedure and existing law, or you have a good faith argument for

extending, modifying, or reversing existing law to allow you to get this

information; and

2. You are not serving the interrogatories for any improper purpose,

such as to harass anyone or to cause unnecessary delay or to needlessly increase

the cost of the litigation; and

3. The interrogatories are not unreasonable or unduly burdensome or

expensive, in light of the needs of the case, the discovery that has already been

taken in the case, the amount in controversy, and the importance of the issues at

stake in the litigation.
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How do I answer interrogatories served on me?

The party answering interrogatories must respond to interrogatories within 30 days. A

responding party can either answer the question or object to the question, or both. If a party

needs more than 30 days to respond, it can ask the other party to agree to give him or her more

than the 30 days provided for under Rule 33(b) of the Federal Rules of Civil Procedure. Often

parties will agree to a reasonable extension of time. If the party that served the interrogatories

will not agree to give the answering party more time, then the party needs to file a motion with

the court requesting additional time. Each interrogatory must be answered separately and fully

in writing under oath, unless it is objected to. Any objections also must be stated in writing, and

must include the reasons for the objection. If you object to only part of a question, you must

answer the rest of the question.

Under Civil Local Rule 33-1, answers and objections to interrogatories must set forth

each question in full before each answer or objection.

Rule 33(a) of the Federal Rules of Civil Procedure requires a party who is served with

interrogatories to answer them with all information that the party has available. “Available”

means more than simply information that a party remembers without doing research. Under

Rule 33(d), if the answer to an interrogatory can be found in your business records or some other

place that is available to you, then you must look for the answer. If the burden of finding the

answer in those records would be about the same for you or for the party who served the

interrogatories, you may answer the interrogatory by simply telling the other side the records in

which the answer can be found, and then allowing that party to look through those records. You

must identify the records in sufficient detail to permit the party who served the interrogatories to

locate and to identify the records in which the answer can be found. You must also give the

party who served the interrogatories a reasonable opportunity to review and copy those records.

Discovery depends upon people giving complete answers to questions. So, it is not appropriate

to answer “I don’t know” to an interrogatory, if the information you need to answer the question

is available to you.

 If a party responds to interrogatories with any objections, the lawyer making the legal

objections must sign the response with the objections. If the responding party does not have a

lawyer, the party should sign. If a party responds to interrogatories with the substantive answer,

the party must sign the answers whether or not the party has a lawyer.

Duty to supplement answers to interrogatories

If you have already answered an interrogatory question, but later you learn something

that changes your answer, you must let the other side know by supplementing your original

answer. Rule 26(e)(2) of the Federal Rules of Civil Procedure imposes a duty on all parties to

supplement their answers to interrogatories if he or she learns that the response is incomplete or

incorrect.
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REQUESTS FOR DOCUMENT PRODUCTION

In a request for document production, you write out descriptions of documents you think

another person has. These should be documents that you reasonably believe would have

information in them about the issues in the lawsuit. You then ask that person to provide you

with copies of any of their documents that satisfy your descriptions. Document requests can be

served on any other person, not just parties to the lawsuit. Different types of requests must be

used, however, depending upon whether you are trying to get documents from a party or from

another person. 

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) of the Federal Rules of Civil Procedure. Under Rule 34(a), any party can

serve on another party:

1. A request for production of documents, seeking to inspect and

copy any documents which are in that party’s possession, custody, or control; or

2. A request for production of tangible things (i.e., physical things

that are not documents), seeking to inspect and copy, test, or sample any thing

which is in that party’s possession, custody, or control; or

3. A request for inspection of property, seeking entry onto property

controlled or possessed by that party for the purposes of inspecting and

measuring, surveying, photographing, testing, or sampling the property or any

object on that property.

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 party to figure out what you want. The request also must

specify a reasonable time, place, and manner for making the inspection and performing any

related acts such as photocopying the materials.

Form

Ordinarily, you should number each request for documents separately. Under Rule

26(g)(2) of the Federal Rules of Civil Procedure, you must sign the requests for document

production and state your address. By signing the requests for document production, you are

certifying to the court that:

1. They are either permitted by the Federal Rules of Civil Procedure

and existing law, or you have a good faith argument for extending, modifying, or

reversing existing law to allow you to request these documents; and

2. You are not serving them for any improper purpose, such as to

harass anyone or to cause unnecessary delay or needless increase in the cost of the
82

litigation; and

3. The requests for document production are not unreasonable or

unduly burdensome or expensive, in light of the needs of the case, the discovery

that has already been taken in the case, the amount in controversy, and the

importance of the issues at stake in the litigation.

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, including service by

mail.

How do I answer a request for document production served on me?

The party who has been served with the request must a written response within 30 days

after the request is served, unless the court or a written stipulation of the parties has set a shorter

or longer time for responding.

Civil Local Rule 34-1 provides that you must write out each request for documents in

your response to a request for production or inspection under Rule 34(a). Therefore, you must

write out each request in full before your response or objection to that request.

The response must state, with respect to each item requested, that you will allow the

inspection and related activities that were requested, unless you make an objection to the request. 

If there is an objection, you must state the reasons for the objection. If you object to only part of

the request, you must state your objection to that part and permit inspection of the rest.

A party who produces documents for inspection must either:

1. Produce the documents as they are kept in the usual course of

business, or

2. Organize and label the documents to correspond with the

categories in the request.

If, after you have responded to a document request, you discover more documents (or

create more documents) that respond to the request, you need to provide those documents as

well. Rule 26(e)(2) of the Federal Rules of Civil Procedure requires parties to supplement their 

responses to a request for document production if they learn that the response is incomplete or

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

If the person that you want to give you documents is not a party to the lawsuit, you need

to follow Rules 34(c) and 45 of the Federal Rules of Civil Procedure. 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

things, or to submit to an inspection, according to the procedures stated in Rule 45. Rule 45 sets

out the rules for issuing, serving, protesting and responding to subpoenas, including subpoenas

duces tecum. As discussed above, a subpoena duces tecum is a document issued by the court

which requires a person to produce documents or submit to an inspection at a specific time and

place.

Form

The same form is used for subpoenas duces tecum and for deposition subpoenas. If you

want a non-party to produce documents at their deposition, you only need to fill out one

subpoena form directing that person to appear at the deposition and to bring certain documents

with them. You may also serve a deposition subpoena and a subpoena duces tecum separately,

so that the person will appear for a deposition at a certain time and produce documents at a

different time. You may also choose to serve only a deposition subpoena, or only a subpoena

duces tecum, depending on what information you need for your lawsuit.

You can get a blank subpoena from the clerk’s office for any production of documents or

inspection that will occur in the Northern District of California. If the document or thing is

outside the Northern District of California, however, you will need to get the subpoena from the

court in the district where the document production or inspection will take place.

Is there anything else to keep in mind about subpoenas duces tecum?

Under Rule 45(b)(1) of the Federal Rules of Civil Procedure, a subpoena duces tecum

may be served by any of the methods listed in Rule 5(b) of the Federal Rules of Civil Procedure,

including service by mail.

Under Rule 45(c)(1) of the Federal Rules of Civil Procedure, you must take reasonable

steps to avoid imposing an undue burden or expense on the person receiving the subpoena duces

tecum.

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

Under Rule 45(c)(2)(A), a person who has received a subpoena duces tecum does not

have to appear in person at the time and place for the production of documents or inspection,

unless he or she also has been subpoenaed to appear for a deposition, hearing or trial at the same

time and place. He can, for example, simply send documents instead of having you show up to

inspect them.

Under Rule 45(c)(2)(B), a person who has been served with a subpoena duces tecum has

14 days to serve any written objections to inspection or copying. The time is shorter if the time
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for production or inspection is less than 14 days after service. The party who served the

subpoena must then get a court order before he or she can inspect or copy any of the materials to

which an objection has been made.

Under Rule 45(d)(1), a person who is producing documents that have been subpoenaed

must either:

1. Produce the documents as they are kept in the usual course of

business, or

2. Organize and label them to match the categories of documents

asked for in the subpoena.

REQUESTS FOR ADMISSION

What is a request for admission?

In a request for admissions, you write out statements of fact you believe are true, and ask

the other party to admit that those statements are true. Or you write out the application of any

law to any fact, and ask the other party to admit that they agree. Requests for admission can

only be used on other parties to the suit. If the other party admits to anything you requested

under this procedure, the court will treat that fact as having been proven.

Form

Rule 36 of the Federal Rules of Civil Procedure establishes the requirements for 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.

Each request for admission must be stated separately, and should be numbered in order. 

Under Rule 26(g)(2) of the Federal Rules of Civil Procedure, you must sign the requests for

admission and state your address. By signing the requests for admission, you are certifying to

the court that:

a. They are permitted by the Federal Rules of Civil Procedure and existing

law, or you have a good faith argument for extending, modifying, or reversing existing

law to allow the requests to be made; and

b. You are not serving them for any improper purpose, such as to harass

anyone or to cause unnecessary delay or needless increase in the cost of the litigation;

and

c. The requests for admission are not unreasonable or unduly burdensome or

expensive, in light of the needs of the case, the discovery that has already been taken in

the case, the amount in controversy, and the importance of the issues at stake in the

litigation.
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How many requests for admission can I serve?

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.

What kind of a response can I expect to my requests for admission?

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 objections to a request for admission,

he or she must state the reasons for the objection. Responses to requests for admission must be

signed by the party or by the party’s attorney.

What happens if I do not respond to a request for admission in time? 

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 by agreement

of the parties or if the court orders a different time for responding. If no response is served

within 30 days (or the time otherwise set by the court or by agreement), all of the requests for

admission are automatically considered to be admitted.

How do I respond to a request for admissions served on me?

An answer to a request for admission must either admit or deny the request, or explain in

detail the reasons why the answering party cannot truthfully admit or deny it. If you can’t either

simply admit or deny a particular request, then you must admit the part that is true and either

deny (or explain why you can’t admit) the rest. In some cases you may not know the answer,

and in those cases you may answer that you do not have enough information to admit or deny the

requested information. But you may not respond that you do not have the information or

knowledge to admit or deny the request, unless you also state that you have made a reasonable

search for the information and that you still do not have enough information to admit or deny the

request.

Any matter that is admitted is treated as if it has been proved for the purpose of rest of

the lawsuit, unless the court allows the answering party to withdraw or change the admission. 

An admission is only for the purposes of the litigation, and is not an admission for any other

purpose. An admission in one lawsuit cannot be used against that party in any other proceeding.
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What if I don’t want to admit to the truth of a request for admission?

Under Rule 37(c)(2) of the Federal Rules of Civil Procedure, if a party fails to admit a

fact in a request for admission and the other party later proves that the fact is true, the requesting

party may file a motion requesting the court to order the answering party to pay the reasonable

expenses incurred in making that proof, including attorneys’ fees. The court must grant the

motion unless it finds that:

1. The request was objectionable under Rule 36(a);

2. The admissions were not important;

3. The party who did not admit the matter had reasonable ground to

believe that it might prevail on that matter; or

4. There was other good reason for the failure to admit.

Duty to supplement responses

After a party has responded to a request for admission, that party is under an on-going

duty to correct any omission or mistake in that response. If a party later obtains information that

changes their response, Rule 26(e)(2) of the Federal Rules of Civil Procedure requires them to

supplement that earlier response if it is incomplete or incorrect.

PHYSICAL AND 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, such as a physician or psychiatrist. 

The party who requested the examination must pay for it.

Is a court order required for a mental or physical examination?

Yes, unless the other party agrees to the examination without an order.

Unlike other discovery procedures, mental or physical examinations can be obtained only

by filing a motion with the court, or by agreement of the parties. If a motion is filed, all of the

ordinary rules for filing motions apply. The motion must:

1. Explain why there is a need for the examination;

2. Specify the time, place, manner, conditions, and scope of the

proposed examination; and

3. Identify the person or persons who will conduct the examination.
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What happens to the results 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

examiner’s findings, including the results of all tests made, diagnoses and conclusions, together

with similar reports of all earlier examinations of the same condition.

Because a medical or physical examination may raise new issues that the parties did not

think of earlier, a party that has obtained an examination may also ask for related information. 

After the party who asked for the examination delivers reports to the party that opposed the

examination, he or she may ask for any similar report of any examination that party has about

the same condition. If the person who was examined is not the party, the party need not produce

any report that the party shows it is unable to obtain.

If an examiner does not produce a report, the court can exclude the examiner’s testimony

at trial.

These requirements for examiners’ reports also apply to mental or physical examinations

that are agreed to by the parties, unless their agreement specifically states otherwise.
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CHAPTER 12 - 

WHAT CAN I DO IF THERE ARE PROBLEMS 

WITH DISCLOSURES OR DISCOVERY?

It is not uncommon for the parties to have disagreements about disclosures or discovery. 

There are several ways to get help from the court when these disputes arise.

What is the first step? 

First, you need to try to resolve the dispute on your own. Under Civil Local Rule 37-

1(a), the court will not hear any motions about disclosures or discovery unless the parties or their

counsel have previously tried to resolve all 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 believe the discovery sought is inappropriate or

too burdensome, or you need more time to respond, you may file a motion for a protective order. 

A protective order is a court order limiting discovery or requiring discovery to proceed in a

certain way. The Federal Rules of Civil Procedure provide for protective orders in Rule 26(c).

A motion for a protective order must be filed in either the court where the lawsuit is

being heard or, if the motion involves a deposition, in the federal district court in the district

where the deposition is to be taken.

A motion for a protective order must include:

1. A certification that you have tried to confer in good faith with the other parties to

resolve the dispute without help from the court, or that you met together but were still unable to

resolve it;

2. An explanation of the dispute and what you want the court to do; and

3. An explanation of the facts and/or law that make it appropriate for the court to

grant your motion.

What if the parties are stuck on a problem in the middle of a discovery event?

A “discovery event” is any activity or proceeding where you meet with the other side and

expect to exchange discovery information, for example, a deposition or inspection. If a dispute

arises at such a time, and you believe that it would save a lot of time or expense if the dispute

were resolved immediately, Civil Local Rule 37-1(b) permits you to call the chambers of the

judge who is assigned to your case to request that he or she address the problem through a

telephone conference with the parties.

Before calling the judge, you must discuss the issues with the other parties and attempt to

resolve the problems on your own. You may call the judge’s chambers only if your negotiations

with the other parties do not resolve the problem.
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The judge is not required to hold a telephone conference. He or she may be busy with

other cases when you call, or may decide that the issue is not urgent and should be addressed in a

written motion.

What do I do if they don’t respond, or if the response is inadequate? 

When a dispute arises over disclosures, or over a response or a failure to respond to a

discovery request, there are two types of motions that may be appropriate: a motion to compel

or a motion for sanctions. Before filing either type of motion, you must confer with the party or

person you think is refusing to cooperate and try to resolve the dispute on your own.

What is a motion to compel?

A motion to compel is a motion asking the court to order a person to make disclosures or

to respond to a discovery request, or to provide more detailed disclosures or a more detailed

response to a discovery request. Rule 37 of the Federal Rules of Civil Procedure and Civil Local

Rule 37-2 address the requirements for motions to compel.

How do I file a motion to compel?

Under Rule 37(a)(1), 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 nonparty to respond to discovery must be filed in the court in the district where the discovery is

being taken.

Content: A motion to compel must include:

1. A certification that you have conferred in good faith, or tried to confer in good

faith, with the other parties to resolve the dispute without help from the court;

2. An explanation of the dispute, and what you want the court to do;

3. If the dispute involves discovery, you must include the complete text of each

disputed discovery request immediately followed by the complete text of the objections or

disputed responses to that request; and

4. An explanation of the facts and/or law that make it appropriate for the court to

grant your motion.

Paying for the motion to compel: If the court grants a motion to compel, or if the

requested disclosure or discovery was provided after the motion to compel was filed, the court

must require the person against whom the motion was filed, or that person’s lawyer, or both, to

pay the reasonable expenses involved in making the motion, including attorney’s fees, unless the

court finds that:

1. The motion was filed without first making a good faith effort to obtain the
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disclosure or discovery without court action; or

2. The opposing party’s nondisclosure, failure or objection was substantially

justified; or

3. Other circumstances make an award of expenses unjust.

A party who does not have a lawyer may not receive an award of attorneys’ fees.

What is a motion for sanctions?

A motion for sanctions asks the court to punish a person for failing to make required

disclosures, refusing to respond to a discovery request, or refusing to obey a court order to

respond to a discovery request. Rule 37(b) through (g) of the Federal Rules of Civil Procedure

and Civil Local Rule 37-3 address the requirements for motions for discovery sanctions.

Under what circumstances can I ask for discovery sanctions?

A motion for discovery sanctions may be brought only if a person:

1. Fails to provide required disclosures; or

2. Fails to obey a court order to respond to a discovery request; or

3. Fails to appear for a deposition that has been properly noticed; or

4. Fails to answer interrogatories that have been properly served; or

5. Fails to respond to a request for document production or inspection that has been

properly served.

A motion for discovery sanctions must be filed as a separate motion, and not as part of

another motion. It must be filed on the normal thirty-five day hearing schedule, and must be

made as soon as possible after you learn about the circumstances that made the motion

appropriate. Unless otherwise ordered by the court, a motion for sanctions may not be filed

more than fourteen days after entry of judgment.

Content: A motion for sanctions must include the following:

1. If the motion involves a failure to respond to interrogatories or request for

document production or inspection, it must include a certification that you have conferred in

good faith, or tried to confer in good faith, with the other parties to resolve the dispute without

help from the court;

2. An explanation of the dispute, and what you want the court to do;

3. An explanation of the facts and/or law that make it appropriate for the court to

grant your motion;

4. Competent declarations which explain the facts and circumstances that support
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the motion;

5. Competent declarations which describe in detail the efforts you made to secure

compliance without intervention by the court; and

6. If attorneys’ fees or other costs or expenses are requested, competent declarations

itemizing in detail the otherwise unnecessary expenses, including attorneys’ fees, directly caused

by the alleged violation or breach, and an appropriate justification for any attorney-fee hourly

rate claimed.

What kinds of things will a court do as a discovery sanction?

If the court grants a motion for sanctions, it may issue any order that is just and

appropriate to address the problem. Rule 37(b)(2) lists some of the types of orders that may be

appropriate:

1. An order resolving certain issues or facts in favor of the party who made the

motion;

2. An order refusing to allow the disobedient person to support certain claims or

defenses, or prohibiting that party from introducing certain evidence;

3. An order striking certain documents or parts of documents from the case, or

staying the lawsuit until the order is obeyed, or dismissing the lawsuit or any part of the lawsuit,

or rendering a default judgment against the disobedient party; or

4. An order holding the disobedient party in contempt of court for failing to obey an

order, except an order to submit to a physical or mental examination.

In addition, if a party fails to make required disclosures under Rule 26(a) or 26(e)(1), or

to supplement a prior response under Rule 26(e)(2), that party cannot use as evidence at the trial,

at a hearing, or on any motion, any information or witness that was not disclosed, unless the

failure to disclose was harmless.

Paying for the motion for sanctions: If the court grants a motion for discovery

sanctions, it must require the disobedient person or that person’s lawyer, or both, to pay the

reasonable expenses, including attorney’s fees, caused by their disobedience, 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 attorneys’

fees.
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CHAPTER 13 - 

WHAT HAPPENS AT A COURT HEARING?

What is a hearing?

A hearing is a relatively formal court proceeding where the parties discuss issues with the

judge and have their arguments on the relevant issues heard by the judge. Sometimes witnesses

can be presented, but that depends on the legal issues the judge is covering at the particular

hearing. 

What do I do before a hearing

Before the hearing, take time to review all of the papers that have been filed for the

hearing. The judge will expect you to be able to answer questions about the issues that are being

addressed at the hearing and about anything else that has been happening in the lawsuit. Bring

with you to court any papers that you might need to answer the judge’s questions.

What does a courtroom look like?

Although each courtroom is slightly different, the courtroom is generally arranged as

follows.

a. In the front of the courtroom is a large desk area where the judge sits. 

This is called “the bench.”

b. In front of the judge and over to one side is a chair where witnesses sit

when they testify. This is called the “witness box.”

c. In front of the judge, there will usually be a person seated in front of a

small machine. This is the court reporter. The court reporter uses the machine to create a

record of everything that is said at the hearing. Occasionally, the court will use a tape

recorder instead of a court reporter to record the hearing.

d. There will often be another person seated in front of the judge. This is the

courtroom deputy, who 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.

e. There may be other court staff members seated off to the side.

f. In the center of the courtroom in front of the bench is a podium with a

microphone. This is where lawyers, and parties who do not have lawyers, must stand

when they speak to the judge.

g. At one side of the courtroom, against the wall, there are two rows of

chairs. This is the jury box, where jurors sit during a trial. During a hearing, court staff

members may be sitting in the jury box.

h. In the center of the courtroom, there will be several long tables with a
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number of chairs around them. This is where the lawyers and the parties sit during a

hearing and during trial. The plaintiffs sit at the table that is closest to the jury box. The

defendants sit at the table next to the plaintiffs.

i. In the back of the courtroom are several rows of benches where anyone

can sit and watch the hearing or trial.

How should I behave at a hearing?

1. When attending a hearing, it is customary to show respect for the court by

dressing nicely and conservatively, as if you were going to a job interview.

2. The judge will expect you to be on time. It is much better to arrive at the hearing

a few minutes early than to arrive a few minutes late.

3. Often the court has several short hearings scheduled for the same time. When

you enter the courtroom, you should sit in the benches in the back of the courtroom until your

case is announced. If your hearing is the only one scheduled, you may sit at the plaintiffs’ or

defendants’ table in the center of the courtroom, instead of sitting in the benches at the back of

the room.

4. When the judge enters the courtroom, you must stand and remain standing until

the judge sits down.

5. When you hear your case announced, go immediately to the podium in front of

the bench. You can bring with you any papers that you may need to refer to during the hearing. 

When you get to the podium, state your name, and indicate whether you are the plaintiff or the

defendant. It is customary to say either:

a. “May it please the court, my name is [your name] and I am the [plaintiff

or defendant] in this case.”

or

b. “Good [morning or afternoon], your honor, my name is [your name] and I

am the [plaintiff or defendant] in this case.”

6. When you speak to the judge, it is customary to refer to the judge as “Your

Honor” instead of using the judge’s name.

7. If the judge is holding a case management conference or status conference, you

should remain standing at the podium, ready to answer any questions the judge may have, unless

the judge asks you to sit down. Always answer the judge’s questions completely, and never

interrupt the judge when he or she is speaking. When the judge is finished asking questions, he

or she will usually ask if the parties have anything else they want to discuss.
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How does a motion hearing work?

If the judge is hearing a motion, the hearing usually goes through the following sequence

of events. 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.

You should try not to repeat all the arguments that you made in your motion or

opposition papers, but instead simply highlight the most important parts.

It is not appropriate to make new arguments that are not in the papers you filed with the

court, unless you have a very good reason why you could not have included the argument in your

papers.

You can refer to notes during your argument, if you need to, but it is usually more

effective to speak to the judge rather than read an argument that you have written down ahead of

time.

When one party is speaking, the other party should sit at the table. Never interrupt the

other party. Instead, always wait until it is your turn to speak.

The judge may ask questions before you begin your argument, and may also ask

questions throughout your argument. If the judge asks a question, always stop your argument

and answer the judge’s question completely. When you are finished answering the question, you

can go back and finish the other points you wanted to make.

If the judge asks you a question when you are seated at the table, stand and walk up to the

podium before you answer the question.

General advice for hearings

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

anything that the judge asks you to do.

2. When the hearing is over, you should immediately leave the courtroom, or, if you

want, you can return to one of the benches in the back of the room to watch the rest of the

hearings. If you need to discuss something with opposing counsel, you must leave the

courtroom and discuss the matter in the hall so that you do not disturb the other people who are

in the courtroom.
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CHAPTER 14 - 

WHAT IS A MOTION FOR SUMMARY JUDGMENT?

A motion for summary judgment is a way to end a case without going through a trial,

because the important facts are not really in dispute. Ordinarily, a case must go to trial because

the parties do not agree about the facts, and they are not able to reach a compromise. A court

does not need to have a trial if the parties agree about the facts, or if one side does not have any

evidence to support its version of what actually happened. In that case, the Court can decide the

issue based on the papers that are filed by the parties alone. A motion for summary judgment

filed by a party asks the court to decide a lawsuit without having a trial because, based on all of

the evidence, there is no real dispute about the key facts.

When plaintiffs file a motion for summary judgment, they are trying to show that the

undisputed facts prove that the defendant violated the law. When defendants file a motion for

summary judgment, they are trying to show the opposite: that the undisputed facts prove that

they did not violate the law. 

Summary judgment will be granted in favor of the party who moved for summary

judgment only if the evidence is so one-sided that a jury could not reasonably find in favor of the

opposing party. In deciding a motion for summary judgment, the court must consider all of the

admissible evidence from both parties. Because summary judgment means that there is no

chance to hear live witnesses and decide who is credible, the court has to consider evidence in

the light most favorable to the party that does not want summary judgment. That means that if

evidence could be interpreted in many ways, the court must interpret it in the way that favors the

party who opposes summary judgment.

If the court grants a motion for summary judgment, the lawsuit is over. If the court

denies a motion for summary judgment the case will go to trial unless the parties decide to

compromise and end the case themselves. By denying summary judgment, a court does not

decide that it believes one side over the other. Rather, denying summary judgment means that

there is a real dispute about the facts that will have to be decided in a trial. 

Rule 56 of the Federal Rules of Civil Procedure explains the requirements for filing

motions for summary judgment. Not every motion for summary judgment tries to end the entire

case. A motion for summary judgment may try to end the whole lawsuit, or it may try to decide

one or more individual claims. A motion for summary judgment may also be brought to decide

if the defendant is liable (that is, violated the law), even if there is still a dispute over the amount

of money or other kinds of damages that the plaintiff should get.

Under what circumstances is a motion for summary judgment granted?

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

1. The evidence presented by the parties in their papers shows that there is no real

dispute about any material fact (in other words, the evidence that actually matters all leads to the

same conclusion), 
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and

2. The undisputed facts mean, under the law, that the party who filed the motion

should prevail (that is, the undisputed evidence proves or disproves the plaintiff’s legal claim). 

What does each side argue to get the result they want on summary judgment?

If the plaintiff files a motion for summary judgment, the plaintiff must do two things:

1. The plaintiff must provide admissible evidence. That evidence must show that

there is no real factual dispute about any element of his or her claim. Evidence includes things

like sworn statements, medical records, and physical things. Evidence is admissible if the

Federal Rules of Evidence (or other federal law) allows that evidence to be considered for the

purpose for which it was offered. 

and

2. The plaintiff must also show that that the defendant does not have any admissible

evidence that, if true, would prove any of the defendant’s defenses to the plaintiff’s claims. 

Usually, this is done by showing that the defendant has admitted that it does not have any other

evidence.

To counter the plaintiff’s motion for summary judgment, the defendant must either:

1. Submit admissible evidence showing that there is a factual dispute about one or

more elements of the plaintiff’s claims or the defendant’s defenses,

 or

2. Show that the plaintiff has not submitted sufficient admissible evidence to prove

one or more elements of the plaintiff’s claims.

If the defendant files a motion for summary judgment, the defendant may win

summary judgment in one of two ways:

1. A defendant may win summary judgment if he or she can show that the plaintiff

simply does not have the evidence necessary to prove one of the elements of the plaintiff’s

claims. An element is one of the building blocks of a legal claim. For example in a claim about

a contract, one element that a plaintiff must prove is that the parties reached an agreement;

another element is that each side agreed to provide something of value to the other. If the

plaintiff cannot prove one of those elements, their claim for breach of contract may be dismissed.

or

2. A defendant may win summary judgment by showing–with admissible
97

evidence–that there is no real factual dispute on any of the elements of his or her defenses

against the plaintiff’s claims. A defense (sometimes called an “affirmative defense”) is a

complete excuse for doing what the defendant is accused of doing. For example, in a breach of

contract case, evidence that it would have been illegal to perform the contract may be a complete

defense.

To counter the defendant’s motion for summary judgment, plaintiffs must:

1. Submit admissible evidence showing that they do have sufficient admissible

evidence to prove every element of their claims, or that there is a factual dispute about one or

more elements of their claims, 

and

2. If the defendant has moved for summary judgment on its defenses, one must

submit admissible evidence showing that there is a factual dispute about one or more elements of

those defenses. A plaintiff can also simply point out that the defendant has not put forward

admissible evidence needed to prove at least one element of its defenses.

If a party does nothing in response to a motion for summary judgment, the party risks

losing the motion and the case.

What evidence does the court consider for summary judgment?

The court considers only the admissible evidence provided by the parties for or against

the motion for summary judgment. The Court does not have to search for other evidence that

may have been provided by you at some other point in the case. The court also does not have to

look at any evidence that is not mentioned in your briefs. Therefore, you should file copies of all

evidence that you want the court to consider when it decides a motion for summary judgment,

and refer to it in your papers. Even if you have already filed the same evidence with the court in

another matter, you must file it with your summary judgment motion (or opposition to summary

judgment) as well. In addition, when you cite to a document, you should point the court to the

exact page and line of the document where the court will find the information that you think is

important. You should remember that by making it easier for the court to find this material, you

are ensuring that this material receives the fullest consideration available.

Every fact that you rely upon must be supported by evidence. It is not enough to repeat

your opinion that a fact is true or to point to arguments you’ve written about in other papers you

filed earlier; you need to show the court the admissible evidence that supports what you’ve said.

Affidavits as evidence on summary judgment

Affidavits are written statements (sometimes called “declarations”) of fact. They are

written by an actual witness to those facts and are signed under oath. An affidavit must be sworn

before a Notary Public. A declaration is also a written statement of fact and is signed under
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penalty of perjury. Either affidavits or declarations may be used as evidence in supporting or

opposing a motion for summary judgment. In a general sense, they are written versions of what

a person would testify to if they were in court on the witness stand. Rule 56(e) of the Federal

Rules of Civil Procedure explains how affidavits and declarations are used for summary

judgment. According to Rule 56(e), any affidavits or declarations submitted by the parties on

summary judgment must:

1. Be made by someone who has personal knowledge of the facts contained in the

written statement;

2. State facts that are admissible in evidence; and

3. Show that the person making the statement is competent to testify to the facts

contained in the statement.

All documents referred to in an affidavit or declaration must be attached to it as exhibits.

Hearsay and summary judgment

Generally, portions of a declaration or affidavit that are based on hearsay may not be

used for summary judgment, and so will be disregarded by the judge. Hearsay is an attempt to

prove that a statement is true by offering a declaration by a person who swears that they heard

the statement from someone else. For example, it is generally not appropriate to claim

something happened because you have a declaration from a person who heard someone else say

it happened. There are many exceptions to this prohibition on hearsay, however. The rules on

the use of hearsay statements can be found in Rules 801 through 807 of the Federal Rules of

Evidence.

The hearsay rules do not just apply to things that people have said. They also apply to

other documents that you may wish to submit as evidence. This goes to the general requirement

that you must prove your case on evidence that is admissible in court. You cannot use hearsay

any more in summary judgment than you can at a trial.

Authentication and summary judgment

Some of your evidence may be in the form of documents such as letters, records, emails,

contracts, etc. Those documents are “exhibits“ to your motion. Just because you attach a

document to your papers, however, does not make it admissible. For one thing, documents can

be hearsay too, so the hearsay rules in Rules 801-807 of the Federal Rules of Evidence apply. In

addition, even if a document is admissible under the hearsay rules, a document may not be

admissible for other reasons. For example, any exhibits that are submitted as evidence must be

authenticated before they can be considered by the Court. 

Rules 901 and 902 of the Federal Rules of Evidence discuss the requirements for

authentication. Generally, a document is authenticated either by:

1. Submitting a statement under oath from someone who can testify from personal
99

knowledge that the document is authentic (that is, it is a real, genuine document); or

2. Demonstrating that the document is self-authenticating, as described in Rule 902

of the Federal Rules of Evidence.

What is the statement of undisputed fact, and why would I file one?

A joint statement of undisputed facts 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.

A separate statement of undisputed facts is a list of the facts that one party believes are

true, and citations to that one party’s evidence to support each fact. Facts contained in one

party’s separate statement of undisputed facts will be taken as true by the court only if the

evidence cited there actually does support the truth of the matter and no other party has

submitted evidence disputing it.

Civil Local Rule 56-2 permits each judge to choose whether to make the parties file a

joint statement of undisputed facts or separate statements of undisputed facts in connection with

a motion for summary judgment. Be sure to check your judge’s standing order to find out if he

or she requires separate statements. You may not file a joint statement of undisputed facts or a

separate statement of undisputed facts unless requested by your judge.

When can a motion for summary judgment be filed?

A defendant can file a motion for summary judgment at any time, as long as the motion

is filed before any deadline set by the court for filing motions for summary judgment. A

plaintiff must wait at least twenty days after the complaint is filed before he or she can file a

motion for summary judgment, unless the defendant has already filed a motion for summary

judgment before then. As a practical matter, parties rarely file a motion for summary judgment

until they have taken some significant discovery. Most motions for summary judgment rely

heavily on evidence obtained in discovery.

What if my opponent files a motion for summary judgment before I have all my discovery?

If the opposing party files a motion for summary judgment before you have finished

discovery, and you need more discovery in order to show why summary judgment should not be

granted, you may file a motion under Rule 56(f) of the Federal Rules of Civil Procedure for an

extension of time (or continuance). In order to get a continuance, you must show what specific

facts you need, why those facts will defeat summary judgment, and why you need discovery to

get those facts. You must be specific, and describe exactly what sort of information you need

from discovery, and why.
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CHAPTER 15 - 

WHAT HAPPENS AT A TRIAL?

The last stage of a lawsuit in district court is a trial. If the court does not dismiss the case

or grant a motion for summary judgment, and if the parties do not agree to a settlement, then the

case will go to trial. Trial is a hard process that requires a good deal of preparation, skill, and

dedication by all parties involved in order to assure its fairness.

What is the difference between a jury trial and a bench trial?

There are two types of trials: jury trials and bench trials.

At a jury trial, 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 then apply the law to the facts that they have found to be

true, and determine who wins the lawsuit. A jury trial occurs when:

1. The lawsuit is a type of case that the law allows to be decided by a jury 

and

2. At least one of the parties asked for a jury trial within the right timeframe. The

timeframe is set forth in Rule 38. A party that does not make a jury trial demand on time forfeits

that right.

At a bench trial, there is no jury. The judge will determine the law, the facts, and the

winner of the lawsuit. A bench trial is held when:

1. None of the parties asked for a jury trial (or did not ask at the right time);

or

2. The lawsuit is a type of case that the law does not allow a jury to decide; 

or

3. The parties have agreed that they do not want a jury trial.

When does the trial start?

The judge sets the date that the trial will begin. Often, the trial date is picked very early

in the process, at the case management conference (discussed in Chapter 9). Sometimes the trial

date will not be picked until later in the case. In this Court, trial is usually scheduled to begin

within twelve to eighteen months after the complaint is filed.
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What do I have to do to prepare for trial?

There is a lot of work to do when preparing for trial, and a lot of documents to be filed

with the court. This handbook is not intended to guide you through all the details and

complicated issues that come up as you go to trial. Besides looking for resources at a law library

about preparing for trial, one thing you should be looking at is the court’s case management

order or any other order that sets a schedule for pretrial events.

When the judge sets the trial date, he or she usually sends out an order setting pretrial

deadlines for filing or submitting various documents associated with the trial. For example, the

judge will probably set dates for submitting copies of exhibits, objections to exhibits, and

proposed jury instructions, among other things. Usually, the judge also will set a date for a

pretrial conference shortly before trial, at which the court will discuss its requirements for

conducting trials, and resolve any final issues that have arisen before trial.

The court’s orders may also set a last date (or “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. You

could find yourself opposing the other side’s motions in limine or wanting to file your own. 

Either way, Rules 103 and 104 of the Federal Rules of Evidence help explain, in part, how to

present admissible evidence questions to the court. Other rules of evidence can also apply,

depending on the exact issue. The court’s ruling on evidence may have a big effect on how

either side’s case looks at trial, so researching, filing and opposing motions in limine can be an

important part of preparing for trial.

Preparing for trial is very time consuming, so be sure to read the pretrial schedule

carefully. Give yourself enough time to file all of the necessary documents on or before the

deadlines.

Besides submitting documents, you also need to arrange for all of your witnesses to be

there at trial. If a witness does not want to come to trial, you can make them attend by serving

them with a trial subpoena. A trial subpoena is a court document which requires a person to

show up at trial on a particular date. Generally, the same rules that apply to subpoenaing a

witness to show up at a deposition also apply to trial subpoenas. (Subpoenas are discussed in

general in Chapter 11 of the Northern District of California’s Handbook for Litigants Without

Lawyers and in the pamphlet “What Is Discovery“).

What happens during trial?

On the first day of trial, the judge will usually meet with the parties briefly to resolve any

last minute problems. Then, if the trial is a jury trial, the first order of business is to pick a jury.

Jury selection

The purpose of jury selection is to pick a jury that can be completely fair to both parties. 

This is accomplished by a process called voir dire, during which each potential juror is asked a

series of questions by the attorneys or the judge. The questions are designed to show any biases

that the juror may have that would prevent him or her from being fair and impartial. Usually, the
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judge asks the questions. Some of the questions are taken from lists of questions that the parties

give the judge before trial. Sometimes the judge lets the lawyers for each party (or any party

who does not have a lawyer) ask additional questions.

Once the questioning is completed, the judge will excuse (that is, send home) any jurors

who the judge thinks are too biased to be fair. The judge will also excuse any other jurors who

he or she believes will not be able to perform their duties as jurors for other reasons. The parties

also will have an opportunity to convince the judge that other additional jurors should be

excused because they are too biased to be fair and impartial, or cannot perform their duties as

jurors for other reasons. This is called challenging for cause.

After all of the jurors that have been challenged for cause have been excused, the parties

have an opportunity to use peremptory challenges to request that additional jurors be excused. A

peremptory challenge is used to excuse a juror without having to give any reason. The judge

will give each party a certain number of peremptory challenges that each party can use to

eliminate jurors who may not be clearly biased, but who the party still does not want to have on

the jury.

After the jury is chosen, the judge will read some instructions to the jury. These initial

instructions tell the jurors about their duties as jurors, explain to them how to deal with 

evidence, and give some understanding about the law that applies to the lawsuit that they are

about to hear.

Opening statements

After the jury is chosen, each party may present an opening statement. The opening

statement is a speech made by each side’s lawyer or representative, or you yourself if you do not

have a lawyer. The purpose of the opening statement is for each party to describe the issues in

the case and state what they expect to prove during the trial. An opening statement is neither

evidence nor a legal argument. It is simply a roadmap of the evidence you believe will come out

at trial. The purpose of the opening statement is to help the jury understand what to expect and

what you consider important.

In the trial, which side puts on witnesses first? 

After the opening statements, the plaintiff presents his or her side of the case to the jury

first. The plaintiff begins by asking a witness all of his or her questions. This is called direct

examination. Then the opposing party has the opportunity to cross-examine the witness, by

asking additional questions about the topics covered during the direct examination. Then, the

plaintiff can ask additional questions about the topics covered during the cross-examination. 

This is called re-direct examination. Usually, a judge will allow this process to continue until

both sides state that they have no further questions for the witness. The plaintiff will present all

of his or her evidence before the defendant has a turn to put on his or her own case. The

defendant is still involved, however, by making objections and preparing to cross-examine the

plaintiff’s witnesses.
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What if the other side wants to put on improper evidence? 

All evidence that is presented by either party during trial must be admissible. The

Federal Rules of Evidence are a very detailed set of rules for the admissibility of evidence. 

If one party tries to present evidence that is not allowed under the Federal Rules of

Evidence or tries to ask improper questions of a witness, the opposing party may object. It is the

opposing party’s duty to object to evidence that it thinks should not be admitted. If the opposing

party does not object, the judge may allow the improper evidence to be presented. At that point,

the other party will not be able to protest that decision on appeal. It is important to remember

that it is the parties’ job to bring errors to the trial judge’s attention and to give that judge an

opportunity to fix the problem through objections. 

The way to object is to stand and briefly state your objection to the judge. Objections

should be brief, but must contain the basis for your objection. For example, a proper objection

might be: “Objection, your honor, inadmissible hearsay.” It is not appropriate to give long

arguments, unless the judge specifically asks you to explain your objection. If the judge wants

to discuss the objection with you, he or she may ask you to come up to the bench where the

judge sits, away from the jury’s view to talk to you quietly. This is called a side bar. The judge

will either sustain or overrule the objection. If the judge sustains the objection, the evidence will

not be admitted or the question may not be asked. If the judge overrules the objection, the

evidence will be admitted or the question may be asked, unless the judge later sustains a

different objection.

What is a motion for judgment as a matter of law, and why do some parties make that

motion right after the plaintiff’s case in the middle of the trial? 

In a jury trial, after the plaintiff has presented all of his or her evidence, the defendant has

an opportunity to make a motion for judgment as a matter of law. Rule 50(a) of the Federal

Rules of Civil Procedure explains the procedures for making a motion for judgment as a matter

of law.

A motion for judgment as a matter of law is a request to the judge to decide the outcome

of the case. The idea of the motion for judgment as a matter of law is that enough facts have

been shown to entitle one side to win, because those facts fit with the law in only one way and in

one party’s favor. A motion for judgment as a matter of law brought by the defendant after the

close of the plaintiff’s evidence argues that the plaintiff failed to provide enough evidence that

any jury could reasonably decide the as a matter of law, the case is over.
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When does the defendant get to present his or her case? 

Sometimes parties don’t file motions for judgment as a matter of law. Or if they do file

motions as a matter of law, sometimes they lose or the judge puts off ruling until later. If any of

these things happen, the case moves forward. In that case, after the plaintiff has completed

examining each of its witnesses, the defendant then presents all of the witnesses that support his

or her defenses to the plaintiff’s case. The same procedure of direct examination, crossexamination, and re-direct examination that was used during presentation of the plaintiff’s

evidence also applies here.

What is rebuttal? 

Rebuttal is the final stage of presenting evidence in a trial. It begins only after both sides

have had a chance to present their case. In the rebuttal stage, whichever party has the burden of

proof (usually the plaintiff) tries to undermine or explain the opposing party’s evidence. This

evidence is called rebuttal evidence. Rebuttal is limited, however. The plaintiff, for example,

cannot just present his or her case over again. Rebuttal is limited to countering only what the

other side argued as evidence. 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 solely

to show that one of those witnesses was not telling the truth. Not all cases have a rebuttal; it

depends on what the party with the burden of proof wants to do and what the court allows.

What happens after both sides have finished presenting their evidence? 

In a jury trial, 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.

A motion for judgment as a matter of law at the end of trial argues that there is so little

evidence supporting the other side’s case, that no jury could reasonably decide the case in favor

of that party. If the court grants a motion for judgment as a matter of law, the case is over.

If the judge does not grant judgment as a matter of law, or if no party asks for it, then the

court will hear closing arguments. In jury trials the judge will instruct the jury about the law and

the jury’s duty, and then the jury will take some time to think and consider the case before

coming up with a decision. 

Instructing the jury

After all witnesses have finished testifying, the judge will instruct the jury about the law

that applies to the case. Sometimes the judge will wait until after closing arguments to instruct

the jury about the law.

Closing arguments

Each party may present a closing argument. The purpose of the closing argument is to

summarize the evidence, and argue how the jury (or, in a bench trial, the judge) should decide

the case based on that evidence.
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In a jury trial, what is the jury doing after closing arguments? 

After both sides make their closing arguments, the jury go back to the jury room alone. 

There, they will discuss the case in private. This is called “deliberating.” After thinking about

and discussing the law and the facts, each juror votes about who he or she thinks should win the

case. Because the decision of the jury must be unanimous in federal court trials, the jurors must

continue to deliberate until they all agree. Sometimes juries have to deliberate for many days

before they reach a decision.

When the jury reaches its decision (the verdict), they will 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, where the verdict will be read aloud. The court then issues a written

judgment announcing the verdict and stating the remedies, if any, that will be ordered. The

judgment is the official decision of how the case has come out. When the judgment on a jury

verdict is issued, the case is usually over. In some cases, a party must file what are called posttrial motions. These can include a renewed motion for judgment as a matter of law or a motion

for a new trial. Unless the court grants a post-trial motion, the case will be over unless one or

more parties takes an appeal to the United States Court of Appeal for the Ninth Circuit.

In a bench trial, what does the judge do after closing arguments? 

If the trial is a bench trial, the judge will end (adjourn) the trial after closing arguments. 

The judge will then review the evidence and write findings of facts and conclusions of law,

which is a document that explains what facts he or she found to be true and what the legal

consequences of those facts are. In addition to that document, the court will then issue a written

judgment stating the remedies, if any, that will be ordered. The judgment is the official decision

of how the case has come out. This process often takes weeks, or even months. The court’s

findings of fact and conclusions of law and judgment usually are mailed to the parties. When the

judgment is issued, the case is over, unless the court grants a motion for a new trial (Chapter 16)

or one or more parties takes an appeal to the United States Court of Appeals for the Ninth

Circuit.
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CHAPTER 16 - 

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. This handbook does not address how to pursue an appeal.

What is a motion for reconsideration?

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. Civil Local

Rule 7-9 explains the rules for filing a motion for reconsideration.

Under what circumstances can I file a motion for reconsideration?

No party is permitted to file a motion for reconsideration without first getting permission

from the court. Therefore, before filing a motion for reconsideration, the party must file a

motion for permission to file a motion for reconsideration. The court will not give permission to

file a motion for reconsideration unless the party seeking permission shows:

1. The facts or law that the parties presented to the court are significantly different

from the actual facts or law and the party applying for reconsideration could not reasonably have

known the true facts or law before the court entered the order that the party now wants the court

to change; or

2. Material new facts have emerged, or a significant change in the law has occurred,

since the order was entered; or

3. The court clearly failed to consider material facts or key legal arguments that

were presented to the court before the order was issued.

A motion for permission to file a motion for reconsideration may not simply repeat the

same arguments that you made previously to the court. If you file such a motion, the court may

impose sanctions against 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 thirty-five day schedule, unless the court sets

a different schedule. The parties may file opposition briefs 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 will issue an

amended version of the original order, changing its original decision.
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Can I get a Magistrate Judge‘s order or report reviewed? 

If the judge who is assigned to your case has referred a pretrial matter to a magistrate

judge for a decision or for a report and recommendation, it is possible to get the magistrate

judge‘s orders or report and recommendation reviewed. The parties can file objections to the

magistrate judge‘s decision or report with the judge who referred the matter. The procedure

depends on the type of matter that was referred to the magistrate judge.

Am I allowed to object to the magistrate judge‘s decisions in general, or just the final

decision on the merits? 

If the matter that was referred to the magistrate judge does not dispose of any party’s

claim or defense on the merits, it is described as a “nondispositive matter.” You can object to

the magistrate’s decisions on nondispositive matters. To learn more about how to handle that

situation, read Rule 72(a) of the Federal Rules of Civil Procedure, the federal statute 28 U.S.C.

§ 636(b)(1)(A), and Civil Local Rule 72-2. A party’s objections to the magistrate judge‘s order

must be filed with the judge who referred the matter no later than ten days after the party is

served with a copy of the magistrate judge‘s order. The opposing party 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 fifteen days

after the objections are filed, the objections are considered to be 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.

How do I get review of a magistrate judge‘s final decision on the merits of a claim?

A decision on the merits that disposes of an entire claim on the merits is called a

“dispositive matter.” What you do if you think that decision was in error depends on whether

the parties consented earlier to the case being handled by a magistrate. 

A magistrate can handle and decide issues like a judge only if the parties consented

earlier in accordance with the rules, such as Rule 72(b) of the Federal Rules of Civil Procedure,

the federal statute 28 U.S.C. § 636(b)(1)(B) and (C), and Civil Local Rule 72-3. If the parties

did not consent, the magistrate can only oversee discovery and make recommendations to the

federal trial judge. You need to read the rules to understand what a magistrate can and cannot

do.

Let’s say the parties did not consent to a magistrate, what then?

If the parties did not consent to the referral of the matter to the magistrate judge, then

Rule 72(b) of the Federal Rules of Civil Procedure, the federal statute 28 U.S.C. § 636(b)(1)(B)

and (C), and Civil Local Rule 72-3 apply. The magistrate judge is not permitted to issue an

order on the matter, but must instead prepare a report and recommendation for the referring
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judge.

If you think the magistrate made a decision he or she was not allowed to make, you must

file objections to the magistrate judge‘s report and recommendation with the judge who referred

the matter no later than ten days after you were served with a copy of the magistrate judge‘s

report. The opposing party may respond to your objections within ten days after being served

with them.

At the time the objections, or the opposing party’s responses, are filed, either party may

also file a motion asking the judge to hear additional evidence not considered by the magistrate

judge.

The referring judge then will make a de novo review of any portion of the magistrate’s

report to which an objection has been made. A “de novo review“ means that the judge will

review 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.

Let’s say the parties did consent to a magistrate, what then? 

If all of the parties have consented to having a magistrate judge decide all issues in the

lawsuit, you may not file objections to the magistrate judge‘s decisions for review by another

judge. Instead, if you believe the magistrate judge made an error, you must file one of the

motions listed in this section with the magistrate judge who made the original decision, or file an

appeal with the United States Court of Appeals for the Ninth Circuit.

What is a 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 ten days

after entry of judgment. The renewed motion must argue that the jury erred in reaching the

decision that it made because the evidence was so one-sided that 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:

1. Refuse to disturb the verdict;

2. Grant a new trial; or

3. Direct entry of judgment as a matter of law.
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What is a motion for a new trial, and what is a motion to amend or alter the judgment?

After a jury trial or a bench trial, either party may file a motion for a new trial. A motion

for a new trial asks to do the trial all over again, on every claim or on just some of them, because

the first one was flawed. Either party can also file a motion to alter or amend the judgment. A

motion to alter or amend the judgment does not ask to do the trial over. Rather, it asks the judge

to change something in the final judgment because of errors during the trial. Both types of

motions are allowed under Rule 59 of the Federal Rules of Civil Procedure. Both types of

motions must be filed no later than ten days after entry of the judgment. 

The way these motions are handled differs slightly between bench and jury trials.

After a jury trial, the court is permitted to grant a motion for a new trial if the jury’s

verdict is against the clear weight of the evidence. The judge can weigh the evidence and assess

the credibility of the witnesses, and does not have to view the evidence from the perspective

most favorable to the party who won with the jury. The judge generally should not overturn the

jury’s verdict unless, after reviewing all the evidence, he or she is definitely and firmly

convinced that a mistake has been made. If the court grants the motion for a new trial, a new

trial will be held with a new jury, and the trial is conducted as if the first trial had never

occurred.

After a bench trial, the court is permitted to grant a motion for a new trial if the judge

made a clear legal error or a clear factual error, or there is newly discovered evidence that could

have affected the outcome of the trial. 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.

A motion to amend or alter the judgment is usually granted only if the court is presented

with newly discovered evidence, has committed clear error, or if there is an intervening change

in the controlling law.

What is a motion for relief from judgment or order?

A motion for relief from judgment or order does not argue with the reason the court

decided the way it did. Instead, it asks the court not to require the party to obey it. The authority

for this type of motion is Rule 60 of the Federal Rules of Civil Procedure. 

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:
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1. Mistake, inadvertence, surprise, or excusable neglect;

2. Newly discovered evidence which by due diligence could not have been discovered in

time to move for a new trial under Rule 59(b);

3. Fraud, misrepresentation, or other misconduct by an opposing party;

4. The judgment is void;

5. The judgment has been satisfied, released, or discharged, or a prior judgment upon

which it has been based has been reversed or otherwise vacated, or it is no longer fair that the

judgment should be applied; or

6. Any other reason justifying relief from the judgment. Relief will be granted under

this last category only under extraordinary circumstances.

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 an appeal?

All final judgments can be appealed to the United States Court of Appeals for the Ninth

Circuit. Most orders issued before judgment (which are referred to as “interlocutory orders”)

cannot be appealed until a judgment is entered. Some of the interlocutory orders that can be

appealed are listed in federal statute 28 U.S.C. § 1292. The idea is that another court gets

involved once everything is done, rather than stepping in at every stage in the proceedings. 

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. You can find the Federal Rules of Appellate Procedure

in any law library, or on the internet at

http://www.law.cornell.edu/topics/appellate_procedure.html. 

The Ninth Circuit also has its own set of local rules, which you can obtain from the Ninth

Circuit clerk’s office, or on the Ninth Circuit’s website at http://www.ce9.uscourts.gov. The

rules for filing appeals are explained in Rules 3 through 6 of the Federal Rules of Appellate

Procedure and Ninth Circuit Rules 3-1 through 5-2.

Generally, appeals must be filed within thirty days after entry of the judgment or the

appealable order, although there are exceptions to this general rule.

Be sure to read carefully Rules 3 through 6 of the Federal Rules of Appellate Procedure

and Ninth Circuit Rules 3-1 through 5-2 if you want to file an appeal.
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GLOSSARY

action

A lawsuit may also be called the action, or the case.

adjourn In the context of a trial, when the judge ends trial proceedings,

he or she is said to adjourn the trial. 

admissible evidence Admissible evidence is evidence that the court must allow to be

introduced at trial; the Federal Rules of Evidence govern the

admissibility of evidence in federal court.

ADR The acronym ADR stands for “alternative dispute resolution,”

which refers generally to methods other than a trial by which a

complaint can be resolved.

ADR Certification An ADR Certification in federal courts is a form that the court

requires you sign, serve, and file with the court affirming that

you have read the court’s ADR handbook, discussed ADR

options with the other parties, and considered whether your

case might benefit from any form of alternative dispute

resolution.

affidavit An affidavit is a statement of fact written by a witness, which

the witness swears before a Notary Public. 

amending a

document

Changing a document that has been filed with the court is

known as amending the document. The change itself is called

an amendment.

amount in

controversy

The amount in controversy refers to the dollar value of what the

plaintiffs ask the court to do in their complaint.

answer The written response to a complaint is referred to as an answer.

application to

proceed in forma

pauperis

An Application to Proceed in Forma Pauperis is the form

plaintiffs who cannot afford the fee to file a Complaint must

file with the court to ask permission to file their Complaint

without paying the fee.

arbitration An arbitration is a form of alternative dispute resolution in

which the parties argue their positions in a less formal “minitrial” to an arbitrator instead of a judge. Even when the

outcome of the arbitration is not binding on the parties, it can

be useful to see how a judge might view the issues to encourage

the parties to resolve their without trial. 

arbitrator An arbitrator is the third-party, neutral person who serves as a

judge for an arbitration. Most arbitrators are attorneys. 

authentication of Before evidence is admissible in court, the party submitting it
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bench The large desk area, usually located at the front of the

courtroom, where the judge sits is referred to as the bench.

bench trial At a bench trial, there is no jury, and the judge determines the

law, the facts, and the winner of the lawsuit.

breach When individuals fail to perform as they have agreed, or

contracted, to do, they commit a breach of the agreement or

contract.

brief A brief is a written statement filed with the court by a party

arguing for or against a motion.

caption The caption is a formatted listing on the front of every

document filed with the court, listing the parties and the name

of the case and other identifying information. The specific

information that must be included in the caption is explained in

Rule 10(a) of the Federal Rules of Civil Procedure and this

court’s Civil Local Rule 3-4.

caption page The cover page of the document containing the caption, always

the first page of any document a party to a lawsuit files with the

court, is called the caption page. 

case A lawsuit may also be called the action, or the case.

case file The court maintains the original copy of every document filed

with it in a case file, also referred to as the permanent case file.

case management

conference

A case management conference is a hearing with the judge at

which the judge, with the help of the parties, sets a schedule for

various events in the case. 

case management

order

The case management order is the court’s written order

scheduling certain events in the lawsuits; the court requires that

the parties, prior to the case management conference, together

file a single proposed case management order, in the same

document with the case management statement, which, if

signed by the judge, will become the case management order.

case management

statement

The court requires that the parties, prior to the case

management conference, together file a single form, called a

case management statement, along with a proposed case

management order in the same document, providing certain

information to be discussed at the case management

conference.

certificate of service The certificate of service is a document showing that a copy of

a particular document–for example, a motion–has been

provided to (in other words, served on) all of the other persons

who are named as parties in the lawsuit.
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challenge for cause During jury selection, the parties have an opportunity to ask the

court to excuse any jurors who they believe are too biased to be

fair and impartial, or cannot perform their duties as jurors for

other reasons; making such a request is called challenging for

cause.

chambers The private office of an individual judge is called his or her

chambers.

chambers copy Whenever parties file documents with the court, they provide

the original and one chambers copy. The original is stored in

the main court files, but the chambers copy is marked

“Chambers” and sent to the judge’s own office file. 

citation A reference to a law, rule, or case is called a citation.

citing When you refer to a law, rule, or case in a brief, you are citing

that law, rule, or case.

claim A claim is a statement, made in a complaint, in which the

plaintiffs argue that the defendants violated the law in a specific

way; claims are sometimes also referred to as counts.

closing arguments At the end of the presentation of all evidence at trial, each party

has an opportunity to make a closing argument, the purpose of

which is to summarize the evidence and argue how the jury (or,

in a bench trial, the judge) should decide the case.

complaint The complaint is a legal document in which the plaintiffs tell

the court and the defendants how and why the plaintiffs believe

the defendants violated the law in a way that has injured them.

compulsory

counterclaim

A compulsory counterclaim is a claim by the defendant against

the plaintiff that is based on the same events or transactions as

the plaintiff’s claim against the defendant.

contempt of court Contempt of court refers to acts found by the court to have been

committed in willful violation of the court’s authority or

dignity, or to interfere with or obstruct its administration of

justice.

continuance A continuance is a grant by the court of an extension of time,

for example, of the time when your opposition brief is due on a

motion.

counsel Attorneys, also called lawyers, are sometimes referred to as

counsel; for example, the attorneys for an opposing party may

be referred to as “opposing counsel.”

count A count is a statement, made in a complaint, in which the

plaintiffs argue that the defendants violated the law in a specific

way; counts are sometimes also referred to as claims.
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counterclaim When a defendant files a complaint against the plaintiff, it is

called a counterclaim.

court of appeals The court of appeals is the court to which a party can go to get

relief from a judgment and some interlocutory orders; for

example, all judgments by the United States Court for the

Northern District of California, can be appealed to the United

States Court of Appeals for the Ninth Circuit.

court reporter A person authorized by law to record testimony, whether in the

courtroom or outside it (for example, at depositions) is called a

court reporter, or a court stenographer.

court stenographer A person authorized by law to record testimony, whether in the

courtroom or outside it (for example, at depositions) is called a

court reporter, or a court stenographer.

courtroom deputy A courtroom deputy is a person who assists the judge in the

courtroom, and usually sits at a desk in front of the judge.

cross-examination At trial, after a party’s direct examination of his or her witness,

the opposing party gets to ask the witness additional questions

about the topics covered during the direct examination; this

process is called cross-examination of the witness.

damages The money that can be recovered in the courts by plaintiffs for

their loss or injury due to the defendants’ violation of law is

referred to as damages.

deliberating Deliberating is when the jury goes back to the jury room to

discuss the case and make their decision.

de novo review A de novo review means the court will consider the matter

before it from scratch, making its own determination; for

example, if a referring judge gives a de novo review to a

magistrate judge’s report and recommendation, he or she

considers the same evidence reviewed by the magistrate judge

and comes to his or her own conclusion.

declarant The declarant is a person making a declaration.

declaration A declaration is a written statement signed under penalty of

perjury by a person who has personal knowledge that what he

or she states in the declaration is true; declarations may contain

only facts, and may not contain law or argument.

default When defendants who have been properly served with the

complaint do not file an answer or other response within the

required amount of time, they are said to be in default.

default judgment If a defendant does not file an answer or other response to the

complaint, the court may enter a default judgment against the

defendant, which means the plaintiff has won the case.
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defendants The defendants are the people the plaintiffs claim injured them

in violation of the law.

defendants’ table In the center of the courtroom, there are several sets of long

tables and chairs where the lawyers and parties sit during

hearings and trial; the table farthest from the jury box is where

the defendants sit and is called the defendants’ table.

defenses The reasons defendants give for why plaintiffs’ claims against

them should be dismissed are referred to as defenses.

deponent The person who answers the questions in a deposition is

referred to as the deponent, or witness; a deponent can be any

person who may have information about the lawsuit, including

one of the other parties to the lawsuit.

deposing The process of taking a deposition is called deposing the

deponent or witness.

deposition A deposition is a question-and-answer session, before trial and

outside the courtroom, in which one party to the lawsuit asks

another person, who is under oath, questions about the issues

raised in the lawsuit. 

direct examination At trial, when a party calls witnesses and asks them all of his or

her questions, this process is called direct examination.

disclosures Disclosures are information that you must give the other parties

to your lawsuit even if they do not ask for it.

discovery Discovery is the formal court process of asking other people to

give you information about the issues in your case; discovery

methods include depositions, interrogatories, requests for

document production, requests for admission, and physical or

mental examinations.

discovery plan Rule 26(a) of the Federal Rules of Civil Procedure requires that

prior the initial case management conference, the parties agree

on a joint proposed discovery plan, which must include the

parties’ views and proposals about various aspects (listed in

Rule 26(a)) of how discovery should proceed in the lawsuit.

diversity jurisdiction Federal courts are authorized to hear lawsuits in which none of

the plaintiffs live in the same state as any of the defendants and

the amount in controversy exceeds $75,000. This subject

matter jurisdiction is referred to as diversity jurisdiction.

division The Northern District of California has three divisions, San

Francisco, Oakland and San Jose, and a separate courthouse for

each. 
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docket The docket is the computer file, maintained by the court, for

each case, which lists the title of every document filed, the date

each document was filed, and the date each document was

entered into the docket.

drop box This court maintains a drop box, where documents can be left at

certain times before and after the clerk’s office is open for

filing with the court.

ECRO The court employee who tape records a court hearing is called

an ECRO, which stands for “electronic court recorder

operator.”

elements (of a claim

or defense)

The individual components of a plaintiffs’ claim or defendants’

defense, each of which must be proved or the claim or defense

cannot be proved, are referred to as the elements of the claim or

defense.

entry of default Entry of default is a formal action taken by the clerk of the

court in response to a plaintiff’s request against a defendant

who has not responded to a properly served complaint; the clerk

must enter default against the defendant before the plaintiff can

file a motion for default judgment.

ex parte motion An ex parte motion is a motion that is filed without giving

notice to the opposing party.

ex parte When you have contact with the judge without giving notice to

the other parties and without them being present, you are said to

have approached the court ex parte.

exhibits Exhibits are documents or other materials that are presented as

evidence at trial or as attachments to motions or declarations.

expert disclosures The disclosures required by Rule 26(a)(2) to the other parties of

the identity of and additional information about any expert

witnesses you may use at trial are referred to as expert

disclosures.

expert report An expert report is a written report, signed by the expert

witness, that must accompany the expert disclosures for any

expert witness whom you may use to give testimony in your

case; Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure

lists what must be included in an expert report.

expert witness An expert witness is a person who has scientific, technical, or

other specialized knowledge that can help the court or the jury

understand the evidence.

federal question

jurisdiction

Federal courts are authorized to hear lawsuits in which at least

one of the plaintiffs’ claims arises under the Constitution, laws,

or treatises of the United States, and this subject matter

jurisdiction is referred to as federal question jurisdiction.
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Federal Rules of

Civil Procedure

The Federal Rules of Civil Procedure set forth the procedural

law that applies to every federal court in the country.

Federal Rules of

Evidence

The Federal Rules of Evidence set forth the rules for submitting

evidence in the federal courts.

filing Filing means that a document submitted to the court by a party

is kept by the court, to be considered in resolving the case. 

Papers not properly prepared may be rejected for filing. 

filing fee The courts charge parties money to process and file the papers

that the parties submit, called a filing fee. In federal court, the

filing fees are set by the United States Congress and the Judicial

Conference of the United States. 

findings of fact and

conclusions of law

In a bench trial, after hearing all the evidence and the closing

arguments and adjourning the trial, the judge writes findings of

fact and conclusions of law explaining what facts he or she

found to be true and what the legal consequences of those facts

are to be issued with his or her written judgment.

fraud Fraud is a false representation of a past or present fact by a

person on which another person or persons rely, resulting in

their injury.

good faith Acting in good faith means having honesty of intentions; for

example, negotiating in good faith would be to come to the

table with an open mind and a sincere desire to reach an

agreement.

grounds The reason or reasons for something is sometimes referred to in

legal documents as the ground or grounds for that thing; for

example, if you present the reasons you object to another

party’s discovery requests, you are giving the grounds for your

objections.

hearing A hearing is a formal meeting of the parties to a lawsuit with

the judge for the purpose of resolving some issue, often with

evidence being presented and witnesses being heard; hearings

are typically open to the public and held in the courtroom.

hearsay Hearsay is a statement made by someone other than the witness

or declarant, which is offered to prove the truth of the matter

asserted in the statement.

impeachment When you call into question a witness’ truthfulness, you are

said to be attempting the impeachment of the witness.
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initial disclosures The disclosures that the parties are required to serve within

fourteen days of their initial case management conference, in

accord with Rule 26(a)(1)(E) of the Federal Rules of Civil

Procedure, are referred to as their initial disclosures.

interlocutory order Court orders issued before judgment are referred to as

interlocutory orders.

interrogatories Interrogatories are written questions served on another party in

the lawsuit, which must be answered (or objected to) in writing

and under oath.

intradistrict

assignment

The intradistrict assignment refers to the assignment by this

court of a lawsuit to one of its three locations or “divisions”

(San Francisco, Oakland, or San Jose), and Civil Local Rule 3-

4(b) requires a complaint to include a paragraph entitled

“Intradistrict Assignment” identifying any basis for assigning

the case to a particular location or division of the court.

joint statement of

undisputed facts

A joint statement of undisputed facts is a list of facts that all

parties believes are true, that contains citations to the evidence

that those facts are true, and is signed by all the parties; either a

statement of undisputed facts or a joint statement of undisputed

facts must be filed with a summary judgment motion.

judgment At the conclusion of a trial, after the verdict has been

announced in the courtroom, the judge issues a written

judgment stating the verdict and the remedies, if any, that are

ordered.

jury box The two rows of chairs, usually located against a side wall in

the middle of the courtroom, where the jury sits during a trial

are referred to as the jury box.

jury deliberations At trial, after having heard all the evidence, closing arguments

from the parties, and instructions from the judge, the jurors go

to the jury room to deliberate in secret and decide who will win

the case; this process is referred to as jury deliberations.

jury instructions Jury instructions are what the judge, at different points in the

trial, tells the jury about their duties, how to approach the

evidence, and about the law that applies to the lawsuit; before

the trial begins, the parties are required to submit proposed jury

instructions that the judge may read, in whole or part, to the

jury at some point during the trial.

jury selection Jury selection is the process by which the jury is chosen;

usually jury selection includes a type of questioning referred to

as voir dire.
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jury trial At a jury trial, a group of citizens, the jury will weigh the

evidence presented by the parties, decide which evidence to

believe, and determine what actually happened; in addition, the

court will instruct the jury on the law, and the jury will apply

the law to the facts that they have found, and determine who

wins the lawsuit.

litigants The plaintiffs and the defendants both are referred to as the

parties to or the litigants in the lawsuit.

Local Rules The Local Rules set forth additional requirements that a specific

federal court has that supplement the Federal Rules of Civil

Procedure; for example, the Local Rules of the United States

District Court for the Northern District of California explain

some of the additional procedures that apply only to this court.

magistrate judge A federal magistrate judge is a judicial officer that has some

but not all of the powers of a federal judge; for example, a

magistrate judge may be designated by a judge to hear a variety

of motions and other pretrial matters, and may, with the consent

of the parties, preside over civil and misdemeanor criminal

trials.

material fact A fact that makes a difference in your lawsuit is referred to as a

material fact.

meet and confer When the parties get together to discuss an issue or issues, they

meet and confer. 

memorandum of

points and

authorities

The portion of a motion that contains your arguments and the

supporting law for why the court should grant your motion is

called the memorandum of points and authorities, sometimes

also referred to as a brief.

mental examination If the physical or mental condition of a party (or a person under

the custody or legal control of a party) is at issue in a lawsuit,

the court may order that person to submit to a physical or

mental examination by a suitably licensed or certified

examiner, such as a physician or psychiatrist; 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.

motion When you apply to the court for a ruling or an order that

something be done, your application is called a motion; motions

usually are submitted in writing, but in certain limited

circumstances—for example, during a hearing or trial—may be

oral (sometimes called a “speaking motion”). 
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motion for a more

definite statement

In a motion for a more definite statement, a defendant argues

that the complaint is so vague, ambiguous, or confusing that he

or she cannot respond to it, and asks for the details that the

defendant needs in order to respond to the complaint.

motion for a new

trial

A motion for a new trial argues that another trial should be held

because of a deficiency in the current trial, for example,

because the jury’s verdict in the current trial is against the clear

weight of the evidence.

motion for default

judgment

If the defendant does not answer the complaint, the plaintiff can

file a motion for default judgment, asking the court to grant

judgment in favor of the plaintiff. If the court grants the

motion, the plaintiff has won the case.

motion for judgment

as a matter of law

In a jury trial, motion for judgment as a matter of law argues

that the opposing party’s evidence is so legally deficient that no

jury could reasonably decide the case in favor of the opposing

party. Defendants may bring such a motion after plaintiffs have

presented all their evidence, and after all the evidence has been

presented, either party may bring such a motion; if the court

grants the motion for judgment as a matter of law, the case is

over.

motion for

permission to file a

motion for

reconsideration

Before filing a motion for reconsideration, a party must ask the

court for permission to file such a motion, which is done

through a motion for permission to file a motion for

reconsideration.

motion for protective

order

If you receive a discovery request and believe the discovery

sought is inappropriate or too burdensome, or you need more

time to respond, you may file a motion for protective order to

ask the court to order that the discovery be limited or proceed in

a certain way.

motion for

reconsideration

A motion for reconsideration asks the court to consider

changing a previous decision, and cannot be filed without the

permission of the court.

motion for relief

from judgment or

order

A motion for relief from judgment or order argues that a

judgment or order should not be given effect or should be

changed for one of the reasons permitted by Rule 60(b) of the

Federal Rules of Civil Procedure.

motion for sanctions A motion for sanctions asks the court to punish a person; for

example, in the context of discovery, a motion for sanctions

asks the court to punish a person for failing to make required

disclosures, refusing to respond to a discovery request, or

refusing to obey a court order to respond to a discovery request.

motion for summary

judgment

A motion for summary judgment asks the court to decide a

lawsuit without a trial because the evidence shows that there is

no real dispute about the key facts.
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motion to amend or

alter the judgment

After entry of judgment, either party may file a motion to

amend or alter the judgment if the party believes a mistake was

made in the judgment that could be corrected by changing it.

motion to compel A motion to compel is a motion asking the court to order a

person to make disclosures or to respond to a discovery request,

or to provide more detailed disclosures or a more detailed

response to a discovery request.

motion to dismiss A motion to dismiss the complaint argues that there are legal

problems with the way the complaint was written, filed, or

served, and asks the court to order the portions of the complaint

with the legal problems dismissed.

motion to extend

time

A motion to extend time is a motion asking the court to give

you more time, or a continuance, before a due date, for

example, to submit your brief on a motion.

motion to shorten

time

A motion to shorten time is a motion asking that the court hear

another motion on a faster than normal schedule.

motion to strike

(portions of the

complaint)

A motion in which you ask the court to order certain parts of

the complaint deleted because they are redundant, immaterial,

impertinent, or scandalous is called a motion to strike.

moving party The party who files a motion is referred to as the moving party.

non-binding

arbitration

One of the court’s alternative dispute resolution (ADR)

programs is non-binding arbitration, in which a neutral thirdparty (an arbitrator) gives a non-binding decision on the

complaint after a hearing at which both parties have an

opportunity to be heard.

non-party deponent A deponent who is not a party to the lawsuit is called a nonparty deponent, or a non-party witness.

non-party witness A person who has information relevant to your lawsuit, but who

is not a party, is called a non-party witness.

notice of deposition Before you can take a deposition, you must serve a reasonable

amount of time in advance of the deposition all of the other

parties in your lawsuit with a written notice of deposition,

giving them all of the information required under Rules 30(b)

and 26(g)(2) of the Federal Rules of Civil Procedure.

Notary Public A Notary Public is a public officer who is authorized by the

state or federal government to administer oaths and to attest to

the authenticity of signatures.
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notice of motion The notice of motion, contained in the first paragraph of a

motion, is a statement telling the other parties what type of

motion you have filed and when you have asked the court to

hold a hearing on the motion.

opening statements At the beginning of the trial, after the jury has been selected, if

it is a jury trial, the parties have an opportunity to make

individual opening statements, in which they can describe the

issues in the case and state what they expect to prove during the

trial.

opposing party In the context of motions, the party against whom a motion is

filed is called the opposing party; more generally, the party on

the other side from you is referred to as the opposing party.

opposition brief The party opposing a motion files a statement with the court,

called an opposition brief—sometimes called an opposition, for

short—explaining his or her arguments against the motion.

overrule (an

objection)

During examination of witnesses at trial, if a party objects to

evidence being admitted or a question being asked, the judge

may overrule the objection, which means that the evidence will

be admitted or the question may be asked, unless the judge later

sustains a different objection.

PACER system Docket information is available on the internet through the

PACER system; PACER stands for “Public Access to Electronic

Court Records.”

parties The plaintiffs and the defendants both are referred to as the

parties to or the litigants in the lawsuit.

peremptory

challenge

During jury selection, after all of the jurors challenged for

cause have been excused, the parties will have an opportunity

to request that additional jurors be excused without having to

give any reason for the request; making such a request is called

a peremptory challenge.

perjury A person is guilty of perjury if he or she makes a false

statement under oath or equivalent affirmation, when the

statement matters and the person does not believe it to be true.

permanent case file The court maintains the original copy of every document filed

with it in a case file, also referred to as the permanent case file.

permissive

counterclaim

A permissive counterclaim is a claim by the defendant against

the plaintiff that is not based on the same events or transactions

as the plaintiff’s claim against the defendant.
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physical examination If the physical or mental condition of a party (or a person under

the custody or legal control of a party) is at issue in a lawsuit,

the court may order that person to submit to a physical or

mental examination by a suitably licensed or certified

examiner, such as a physician or psychiatrist; 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.

plaintiffs The plaintiffs are the people who file the complaint and who

claim to be injured by a violation of the law.

plaintiffs’ table In the center of the courtroom, there are several sets of long

tables and chairs where the lawyers and parties sit during

hearings and trial; the table nearest the jury box is where the

plaintiffs sit and is called the plaintiffs’ table.

prayer for relief The last section of a complaint is entitled the prayer for relief,

and in it the plaintiffs tell the court what they want it to do to

relieve the injuries stated in their claims.

pretrial conference The pretrial conference is a hearing shortly before trial at

which the court discusses its requirements for conducting trial

and resolves any final issues that have arisen before trial.

pretrial disclosures The disclosures required by Rule 26(a)(3) of the Federal Rules

of Civil Procedure of certain information about evidence that

you may present at trial (except for evidence that will be used

solely for impeachment) is referred to as the pretrial

disclosures.

procedural law Procedural law sets forth the requirements for how lawsuits

must be conducted in the courts.

process server A process server is a person authorized by law to serve process

on the defendant; usually process servers are professionals.

proof of service The document by which you can prove that a certain document

was served is called the proof of service; for example, a

certificate of service is proof of service.

proposed jury

instructions

Before the trial begins, the parties are required to submit

proposed jury instructions that the judge may read, in whole or

part, or in modified form, to the jury at some point during the

trial, usually just before the jury deliberations, to instruct the

jury on the law relevant to the lawsuit.

protective order A protective order is a court order limiting discovery or

requiring discovery to proceed in a certain way.
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quash the subpoena If a court quashes the subpoena, the deponent does not have to

appear for the deposition and/or produce documents at the place

and time listed on the subpoena.

rebuttal Rebuttal is the final stage of presenting evidence in a trial

rebuttal testimony At trial, after defendants have completed examining each of

their witnesses, plaintiffs can call additional witnesses solely to

counter—or “rebut”—testimony given by the defendants’

witnesses, that is, to give rebuttal testimony.

re-direct

examination

At trial, after the opposing party has cross-examined a witness,

the party who called the witness gets to ask the witness

questions about topics covered during the cross-examination;

this process is referred to as re-direct examination.

referring judge A federal judge who refers some matter or matters within a

lawsuit to a magistrate judge is called the referring judge.

remedies In the context of a civil lawsuit, remedies are actions the court

can take to redress or compensate a violation of rights under the

law.

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 a motion for judgment as a matter of law at the

close of all evidence, then you may bring a renewed motion for

judgment as a matter of law to argue that the jury erred in

reaching the decision that it made because the evidence was so

one-sided that no reasonable jury could have reached that

decision.

reply Both the answer to a counterclaim and the response to the

opposition to a motion are referred to as a reply.

reply brief The moving party usually will file a reply brief—sometimes

called a reply, for short—responding to the opposing party’s

opposition brief.

report and

recommendation

A federal judge may refer a matter within a lawsuit to a

magistrate judge for a report and recommendation; that is, the

magistrate judge is not permitted to issue an order on the

matter, but rather must file with the referring judge a written

report and a recommendation for how the matter should be

decided.

request for entry of

default

The first step for the plaintiff to get a default judgment granted

by the court against a defendant is to file a request for entry of

default with the clerk of the court, showing that defendant has

been served with the complaint and summons, and has not filed

a written response to the complaint in the required time.
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request for

inspection of

property

In order to enter the property controlled or possessed by a party

to your lawsuit for the purposes of inspecting and measuring,

surveying, photographing, testing or sampling the property or

any object on the property relevant to your lawsuit, you ask the

party in writing in a document referred to as a request for

inspection of property.

request for

production of

tangible things

In order to inspect and copy, test, or sample anything relevant

to your lawsuit which is in the possession, custody, or control

of another party to the lawsuit, you ask the party to make the

items available to you in a document referred to as a request for

production of tangible things.

request for waiver of

service

A request for waiver of service is a form with which you ask

the defendant to accept the summons and complaint without

formal service.

requests for

admission

A request for admission is a court procedure in which one party

may ask another party in writing to admit the truth of any

statement, or to admit the application of any law to any fact.

requests for

document production

In order to obtain copies of documents that are relevant to your

lawsuit from parties to the lawsuit, you ask the parties for them

in writing in a document referred to as a request for document

production.

ruling from the

bench

If the court announces its decision on a motion during the

hearing on the motion, it is said to be ruling from the bench.

sanction A sanction is a punishment the court may be asked to impose

on a person in certain circumstances, for example, if a person

refuses to obey a court order, or refuses to respond to discovery

requests.

self-authenticating Certain documents do not need any proof of authentication

beyond the documents themselves, to be admissible evidence in

accord with Rule 902 of the Federal Rules of Evidence; these

documents are said to be self-authenticating.

serve, service When you provide a document to a party in accord with the

requirements found in Rule 5 of the Federal Rules of Civil

Procedure, you are said to have served or provided service to

the party.

service of process Service of process is when the original complaint in the lawsuit

is provided to the defendants in accord with the requirements

for service found in Rule 5 of the Federal Rules of Civil

Procedure.
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side bar A side bar is when the judge calls the lawyers (or the parties if

they don’t have lawyers) to one side of the bench to discuss any

issue away from the jury’s view.

standing order A judge’s standing order explains certain procedures, in

addition to those found in the Federal Rules of Civil Procedure

and the Local Rules, that apply only to lawsuits that are heard

by that particular judge.

Statement of

Nonopposition

If the opposing party does not oppose a motion, he or she must

file a written statement telling the court he or she does not

oppose the motion, which is referred to as a Statement of

Nonopposition. 

statement of

undisputed facts

A statement of undisputed facts is a list of facts that one party

believes are true and that contains citations to the party’s

evidence that those facts are true; either a statement of

undisputed facts or a joint statement of undisputed facts must

be filed with a summary judgment motion.

status conference A status conference, which may also be referred to as a

subsequent case management conference, is a hearing the judge

may call during the course of the lawsuit to assess the progress

of the case, or address problems the parties are having.

statute of limitations The statute of limitations is the amount of time the plaintiffs

have to file a complaint after they have been injured, or, in

some cases, after they have become aware of the cause of the

injury. 

stipulation A stipulation is a written agreement signed by all the parties to

the lawsuit or their attorneys.

strike If the court orders that a document or a portion of a document

be deleted, then it is said to strike the document or portion of it.

subject matter

jurisdiction

If the law permits a court to hear a certain type of lawsuit, the

court is said to have subject matter jurisdiction over that type of

lawsuit.

subpoena A subpoena is a document issued by the court which requires a

person to appear for a court proceeding at a specific time and

place, and/or to make available at a specific time and place

documents specified in the subpoena.

subpoena duces

tecum

A subpoena duces tecum is the form of subpoena used to

require a non-party deponent to bring documents specified in

the subpoena duces tecum to the deposition; the same form is

used for a subpoena duces tecum as for a deposition subpoena.

substantive law Substantive law determines whether the facts of each individual

lawsuit constitute a violation of the law for which the court may

order a remedy.
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summary judgment Summary judgment is a decision by the court to end a lawsuit,

usually before trial, because the evidence shows that there is no

real dispute about the key facts.

summons A summons is a document from the court that you must serve

along with your original complaint to start your lawsuit.

sustain (an objection) During examination of witnesses at trial, if a party objects to

evidence being admitted or a question being asked, the judge

may sustain the objection, which means that the evidence will

not be admitted or the question will not be asked.

taking a motion

under consideration

If the court decides to consider a motion further after a hearing,

or without a hearing, and send the parties a written opinion, it is

said to be taking a motion under consideration.

time-barred When the time limit has passed by which plaintiffs must make

their claim (or, in other words, when the statute of limitations

has run), the claim is said to be time-barred.

transcript The written record taken down by a court reporter, or court

stenographer, of what was said in a deposition or court

proceeding is called a transcript. 

trial subpoena A trial subpoena is a type of subpoena that requires a witness to

appear at trial on a certain date.

undisputed fact A fact about which all the parties agree is an undisputed fact.

vacate When a court sets aside an order it previously made so that the

order has no further effect, it is said to have vacated the order.

venue Venue refers to the place where the lawsuit is filed.

verdict When the jury—or in a bench trial, the judge—decides who

wins the trial, the decision is call a verdict.

verdict form In a jury trial, the form the jury fills out to record their verdict

is called a verdict form.

voir dire Voir dire is a jury selection process in which each potential

juror is asked a series of questions designed to show any biases

that the juror may have that would prevent him or her from

being fair and impartial; usually, the judge asks questions

selected from a list the parties have submitted before trial, but

sometimes the judge allows the lawyers for the parties (or any

party without a lawyer) to ask additional questions.

waiver of service If a party agrees that he or she does not require a document be

provided in accord with the service requirements of Rule 5 of

the Federal Rules of Civil Procedure, this agreement is called a

waiver of service.
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with prejudice If a court dismisses claims in your complaint with prejudice,

you may not file another complaint in which you assert those

claims again.

without prejudice If a court dismisses claims in your complaint without prejudice,

you may file another complaint in which you assert these

claims again. Dismissal without prejudice is sometimes also

referred to as dismissal “with leave to amend” because you are

permitted to file an amended complaint.

witness A witness is a person who has personal knowledge regarding

facts relevant to your lawsuit

witness box The chair where witnesses sit when they are testifying in court,

usually located in front of the courtroom and to the side of the

judge’s bench, is referred to as the witness box.
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INDEX

action 18, 23, 28, 33, 90

adjourn 34, 106

admissible evidence 72, 77, 79, 95-97, 102

ADR 37, 43, 65-67

ADR Certification 37, 66

affidavit 97, 98

amending a document 24

amount in controversy 21, 22, 75, 79, 82, 84

answer 24, 43-50, 85

application to proceed in forma pauperis 34-36

arbitration 2, 64, 66

arbitrator 66

authentication of evidence 98, 99

bench 92, 93, 104

bench trial 101, 106, 110

breach 47, 91, 96, 97

brief 13, 53, 97

caption 19, 24, 25, 28, 46, 47, 52, 54, 55

caption page 19, 25, 28, 29, 52, 59

case file 59, 60

case management conference 37, 63-67, 93, 101

case management order 64, 65, 67, 73, 102

case management statement 37, 64-67

certificate of service 29, 41, 42

challenge for cause 103

chambers 29, 59, 88

chambers copy 31

citation 53, 55, 99

citing 53

closing arguments 105, 106

complaint 13, 18-26, 28, 31, 32, 34-52, 59, 63, 65, 66, 99, 101

compulsory counterclaim 47

contempt of court 91

continuance 100

counsel 74, 88, 94

counterclaim 43, 45-48

court of appeals 106, 109-111

court reporter 33, 34, 73, 78, 92

court stenographer 33, 73

courtroom deputy 13, 59, 92

cross-examination 103, 105

damages 35, 45, 50, 68, 69, 95

de novo review 109
130

declarant 54

declaration 50, 53, 54, 56, 57, 91, 98

default 50

default judgment 44, 50, 51, 91

defendants table 93, 94

defenses 45, 48, 68, 91, 96, 97, 105

deliberating 106

deponent 73-78

deposing 73

deposition 70, 72-78, 83, 88, 90, 102

direct examination 103, 105

discovery 21, 43, 57, 63-65, 68-70, 72, 73, 75, 77, 79, 80, 82, 84, 86, 88-90, 99, 100, 102, 108

discovery plan 64, 65, 68

diversity jurisdiction 22

division 18, 22, 23, 26, 29, 30

docket 33, 34, 59-62, 110

drop box 30, 31, 37

ECRO 33, 34

elements of a claim 96, 97

elements of defense 96, 97

ex parte 57

ex parte motion 57

exhibits 23, 70, 71, 98, 102

expert disclosures 68-70

expert report 69, 70

expert witness 69, 70, 73

federal question jurisdiction 21

Federal Rules of Civil Procedure 13, 19-21, 23, 24, 33, 36-42, 44-52, 58, 64, 65, 68-86, 88-90,

95, 98, 100, 104, 105, 108-111

Federal Rules of Evidence 13

filing fee 31, 33-36

findings of fact and conclusions of law 106, 110

form complaint 19

fraud 1, 23, 111

good faith 21, 65, 75, 79, 81, 84, 88-90

ground 2, 86

hearing 28, 29, 31, 33, 52-59, 83, 90-94, 107

hearsay 98, 104

impeachment 68, 70

in forma pauperis 34-36

initial disclosures 68, 69

interlocutory order 111

interrogatories 63, 72, 78-80, 90

intradistrict assignment 22, 26

joint statement of undisputed facts 99

judgment 33, 90, 105-107, 109-111

jury box 92, 93

jury deliberations 106

jury selection 102
131

jury trial 23-25, 101, 102, 104-106, 109, 110

litigants 18, 102

Local Rules 13, 42, 52, 54-58, 63-67, 73, 74, 78, 80, 82, 85, 88-90, 99, 107, 108, 111

magistrate judge 29, 33, 37, 43, 108, 109

material fact 95, 107

meet and confer 64, 68, 73, 74

memorandum of points and authorities 53, 55

mental examination 72, 86, 91

motion for a default judgment 44

motion for a more definite statement 43, 49

motion for a new trial 106, 110

motion for default judgment 50

motion for judgment as a matter of law 104, 105, 109

motion for permission to file a motion for reconsideration 107

motion for protective order 88

motion for reconsideration 107

motion for relief from judgment or order 110

motion for sanctions 89-91

motion for summary judgment 95-101

motion in limine 102

motion to amend or alter the judgment 110

motion to compel 89

motion to dismiss 24, 43, 48, 49

motion to extend time 58

motion to shorten time 56, 57

motion to strike (portions of the complaint) 43, 50

moving party 52, 55

non-binding arbitration 66

non-party deponent 76, 83, 89

non-party witness 76, 83, 89

Notary Public 98

notice of deposition 74-77

notice of motion 53, 55

opening statements 103

opposing party 24, 52, 55, 57, 90, 94, 95, 100, 103-105, 108, 109, 111

opposition brief 52, 55-57, 107

overrule (an objection) 104

PACER system 34, 60-62

peremptory challenge 103

perjury 42, 53, 54, 98

permanent case file 59

permissive counterclaim 47

physical examination 72, 86, 87

plaintiffs' table 93

plaintiffs table 93, 94

prayer for relief 20
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pretrial conference 63, 102

pretrial disclosures 68, 70, 71

procedural law 13

process server 37, 38, 42

proof of service 41

proposed jury instructions 102

protective order 88

quash the subpoena 76

re-direct examination 103, 105

rebuttal 105

referring judge 108, 109

remedies 106

renewed motion for judgment as a matter of law 106, 109

reply 48

reply brief 52, 55-57, 107

report and recommendation 108, 109

request for admission 85

request for document production 72

request for entry of default 50

request for inspection of property 81

request for production of tangible things 81

request for waiver of service 44

requests for admission 72, 84-86

requests for document production 72, 77, 81, 82

ruling from the bench 52

sanction 21, 107

self-authenticating 99

service 2, 4-11, 29, 31, 37-39, 41, 51, 60-62, 74, 78, 82-84

service of process 36, 39, 48

side bar 104

standing order 13, 37, 54, 57, 64, 67, 99

Statement of Nonopposition 55

statement of undisputed facts 99

status conference 63, 93

statute of limitations 24

stipulation 56-58, 66, 82

subject matter jurisdiction 18, 20-22, 47, 48

subpoena 76, 83, 84, 102

subpoena duces tecum 77, 83

substantive law 13

summary judgment 52, 54, 95-98, 100

summons 36-42, 44, 48, 50

sustain (an objection) 104

taking a motion under consideration 52

time-barred 24

transcript 33, 34, 70, 73, 78

trial subpoena 102

undisputed fact 95, 96, 99

vacate 107, 108, 111
133

venue 18, 20, 22, 26, 48

verdict 106, 109, 110

verdict form 106

voir dire 102

waiver of service 37, 38, 41, 44

with prejudice 49

without prejudice 41

witness 68-70, 73-75, 91, 92, 95, 98, 102-105, 110

witness box 92
1

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The Court wishes to acknowledge and thank Bob Orlowsky and Jeff Bleich, Sarah Kurtin, &

Paul Davis of Munger, Tolles & Olson for their invaluable assistance in putting this Manual

together. This Manual is dedicated to the memory of Paul Davis.

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