Representing Yourself in Federal District Court:

A Handbook for Pro Se Litigants

PRESENTED BY

Access to Justice Task Force

This is an informational handbook. This handbook is a guide for self-represented litigants. It is not legal advice and should not be considered as such. Do not cite to this handbook in your filings with the Court. The Court will not consider this handbook as legal authority. Do not contact the Clerk’s Office with questions about this handbook. The Court will not answer questions about the handbook’s content or how it may pertain to an individual case. Those seeking guidance concerning a federal action should consult with an attorney.

Special acknowledgement and appreciation is extended to the United States District Court for the Northern District of New York and the United States District Court for the Northern District of California, for permission to adopt portions of their pro se litigant handbooks. This handbook may serve as a form for district-specific handbooks.

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This Handbook is designed to help people with filing civil lawsuits in federal court without legal representation. Proceeding without a lawyer is called proceeding “pro se,” a Latin phrase meaning “for oneself.” Representing yourself in a lawsuit can be complicated, time consuming, and costly. Failing to follow court procedures can mean losing your case. For these reasons, you are urged to work with a lawyer if possible.

Do not rely entirely on this Handbook. THIS HANDBOOK IS MEANT TO BE USED FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL

ADVICE. This Handbook provides a summary of civil lawsuit procedures and may not cover all procedures that may apply in your case. It also does not teach you about the laws that will control your case. Make sure you read the applicable federal and local court rules and do your own research at a law library or online to understand your case. This Handbook identifies the location of resources you can access, free of charge, to do research.

The United States District Court Clerk’s Office staff can answer general questions, but they cannot give you any legal advice. For example, they cannot help you decide what to do in your lawsuit, tell you what the law means, or even advise you when documents are due.

Warning to Incarcerated or Detained Persons: Please note that some parts of this

handbook will not apply to actions filed by incarcerated or detained persons. Detained litigants are often required to comply with different statutes and Court rules. These rules may include—but are not limited to—the use of Court-approved forms where applicable and the exhaustion of administrative remedies prior to filing suit.

There is a lot to learn in representing yourself in federal court, but here are some key pointers.

papers you get from the Clerk’s Office when you file. It is very important that you know what is going on in your case and what deadlines have been set.

2. Meet every deadline. If you do not know exactly how to do something, try to get help and

do your best. It is more important to file/submit required documents and responses on time, than to do everything perfectly. You can lose your case if you miss deadlines. If you need more time to do something, ask the Court in writing for more time as soon as you know that you will need more time it and before the deadline has passed.

3. Use your own words and be as clear as possible. You do not need to try to sound like a

lawyer. In the documents you file with the Court, be specific about the facts that are important to the lawsuit. When you cite a case that you believe supports your position, explain to the Court why that case applies or is similar to your case.

4. Always keep all of your paperwork and stay organized. Keep paper or electronic copies

of everything you send to and/or file with the Court. Also, keep everything you receive from the Court, the other side, or anyone else relating to your case. When you file a paper in the Clerk’s Office, bring at least the original and two copies so that you can keep a stamped copy for yourself. Know where your papers are located so that you can use them to work on your case.

5. Have someone else read your papers before you submit/file them. Be sure that person

understands what you wrote; if not, rewrite your papers to try to explain yourself more clearly. The judge may not hear you explain yourself in person and may rely only on your papers when making decisions about your case.

6. Be sure the Court always has your correct address and phone number. If your contact

information changes, contact the Clerk’s Office in writing immediately. Always include your case number on any paperwork that you submit to the Court.

Court for filing. All documents filed with the Court will be available to the public on the Internet.

Protect your privacy and that of other individuals you refer to in your documents by not including in documents you send to the Court any of the following: social security and taxpayer identification numbers, names of minor children, dates of birth, and financial account numbers. If your lawsuit involves a minor, you must identify them by their initials only.

7. Check the Court’s website. Courts will sometimes have a specific webpage for pro se

litigants that includes useful forms and other helpful information specific to that Court.

There are six important questions you should consider before you file a case in federal court. This list does not include every important thing to think about – there may be other important considerations that are not listed here. However, these six questions are essential to every lawsuit filed in federal court. You should also be aware that even if you can answer “Yes” to each question, and you believe you should win your lawsuit, there is always a possibility that you may not ultimately win.

1. Have I explored alternatives to suing?

2. Have I suffered the type of injury or harm that a Court can help me with?

3. Does the federal district court have jurisdiction to hear my claim?

4. Which District is the proper one to file my action?

5. Will my claim be timely if I file it now?

6. Have I exhausted all other available remedies?

Even if you do have the right to sue, you should carefully consider alternatives to suing. Lawsuits can be costly, stressful, and time-consuming. Instead of filing a lawsuit, you can try other alternatives or solutions. Some alternatives to bringing a lawsuit include:

Gathering Information. Sometimes things are not what they seem at first. Sometimes things that appear to have been done on purpose were done unintentionally. Fully investigating what happened may help you decide whether a lawsuit is advisable.

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 about the problem, rather than if they first they hear about the problem through a lawsuit.

Going to Governmental or Private Agencies. Consider whether there are other processes

you could use, or agencies you could ask for help, with your problem. Sometimes there is a governmental or private agency that can address your problem or lend assistance to you. Examples of such agencies include:

• The Equal Employment Opportunity Commission (or an equivalent state, county or city agency) to address employment discrimination;

• The local police review board or office of citizens’ complaints to hear complaints about police conduct;

• A consumer protection agency or the local district attorney’s office to investigate consumer fraud;

• 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.

Using a Small Claims Court. In some cases, you may have the option of filing a case in small claims court, which is designed for people without formal training in the law. These courts are part of any state court system. There is no equivalent to the small claims court in the federal courts.

Alternative Dispute Resolution. Dispute resolution services—such as mediation— 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. Many counties have free or low-cost agencies that can assist you in finding a provider of alternative dispute resolution services. Go to page 38 for more information about Alternative Dispute Resolution.

You cannot sue someone just because you are angry at him or her, nor can you sue someone simply because he or she has committed some illegal act. In order to bring a lawsuit that the Court will not dismiss right away, the person you are suing must have caused you to be harmed or

wronged in some real, concrete way.

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The person bringing the lawsuit, called the “plaintiff,” must be asserting his or her own personal legal interests. Typically, a person may not sue to assert the rights of a third party. In other words, a plaintiff normally must assert that he or she has suffered the injury, or that a distinct group of individuals of which he or she is a part, has suffered the injury. A Court generally will not address a “generalized grievance,” which is an injury that is shared in “substantially equal measure by all or a large class of citizens.” 1 Further, the plaintiff must have actually suffered the harm already, or else the plaintiff must be about to suffer the harm “imminently,” meaning that the plaintiff will actually suffer the harm in the immediate future. Lastly, remember that some cases (such as False Claims Act claims) cannot be handled without an attorney.

The United States District Court is a federal trial court. Federal courts have “jurisdiction,” meaning the legal authority, to hear only certain types of cases. As is the case in all federal trial courts, a federal district court is generally authorized only to hear cases that fall into the following four categories:

1. Those that deal with a question involving the United States Constitution;

2. Those that involve questions of federal law (as opposed to state law, unless there is a state law claim related to a federal claim being made, in which case the court may agree to consider it);

3. Those that involve the United States as a party, whether as a plaintiff or defendant;

4.  

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Those that involve a dispute among residents of different states with an amount in controversy exceeding $75,000. 2

1 Warth v. Seldin, 422 U.S. 490, 499 (1975); see U.S. v. Hays, 515 U.S. 737, 743 (1995).

2 It is important to note that in cases invoking diversity jurisdiction with multiple defendants or multiple plaintiffs, no single defendant can be a resident of the same state as any single plaintiff.

If your case does not fall under any of these categories, you should not file it in a federal district court.

If you decide that your claim may be brought in a federal district court because there is either a federal question, the United States is a party, or when the dispute is between residents of different states and the amount in controversy is more than $75,000, you must then determine in which federal court to file. To decide a case, the court you select must have some logical relationship either to the litigants or to the subject matter of the dispute; this is called venue.

Generally, you may only file a lawsuit if the actions or inactions that you believe violated your rights occurred within the boundaries of that District Court. If you are unsure, call the District Court Clerk’s Office for guidance.

Usually a claim must be filed within a certain period of time after an injury occurs or is discovered. This time bar is called the “statute of limitations,” and the length of the statute of limitations varies depending on the type of claim. Some federal and state statutes set forth a specific limitations period that may differ from those listed above. Whether your claim is barred by the statute of limitations is a legal question which may require you to do some legal research. You should make sure your claim is not time-barred before you file a lawsuit.

You should be aware that, in some instances, it is necessary for you to pursue certain remedies before you can properly pursue a claim in federal court. Two common instances are discussed below.

People frequently want to appeal the decision of a governmental agency that affects them. For example, a person may want to appeal the decision of the Social Security Administration that denied him or her social security benefits.

If you want to appeal the denial of a benefit that is provided through an agency of the United States government, you must pursue all the administrative procedures established by the agency for appealing its rulings before you file a lawsuit. Only after you have exhausted your administrative remedies, and you still believe you are entitled to a benefit that you have not received, may you initiate a lawsuit in a federal district court.

A person who believes he or she has been illegally discriminated against by an employer may wish to bring a lawsuit against that employer under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or the Age Discrimination in Employment Act. However, before a person can bring such a lawsuit, he or she must first file a complaint with either the Equal Employment Opportunity Commission (“EEOC”) or the state Division of Human Rights.

In conclusion, it is important that you consider all of these questions before you file a case. After all of these factors have been considered, you must still follow the procedures set out by the particular district court you decide to file your case. Many of the specific procedural rules for your district court are set forth in the Local Rules, which are available online or in the Clerk’s Office.

Bringing a lawsuit can be time consuming and complicated. While it is possible to navigate the federal judicial system on your own, having an experienced attorney to help you can improve your chances of doing things properly and getting a result with which you are happy. While some lawyers are expensive to hire, there are several options for hiring a lawyer that will cost you little

or no money. In general, the options are: (1) hiring a lawyer who will work on a “contingency” basis; (2) finding a lawyer to take on your case “pro bono” (meaning at no cost to you); and (3) asking the court to appoint counsel for you. These options are discussed in more detail below.

It is important to note that in a criminal case, a defendant is entitled to legal counsel by the United States Constitution, and one is provided if the criminal defendant is unable to hire a lawyer. However, a party to a civil case is not entitled to an attorney paid for the by the government, even if he or she cannot afford one.

There are several options to find a lawyer to represent you even if you cannot afford to pay for legal services. For example, some attorneys may be willing to accept a reduced fee or lenient fee payment schedule to take on your case. Some attorneys also offer “limited representation,” meaning that they may help you evaluate your case, or draft a pleading, without requiring that you hire them for the entire case. Other attorneys may be willing to accept your case on a contingent fee basis, which means the attorney would receive a fee based upon a percentage of your recovery if you win your case and would receive nothing if you do not win. If you would like assistance in finding an attorney who may consider taking your case on a contingency or “limited representation” basis, there are lawyer-referral services that may be able to help you. For a list of the Lawyer Referral Services located within the Federal District you wish to file your claim, check your district court’s website.

In addition to lawyers who will work for reduced fees or on a contingency basis, many lawyers offer “pro bono” legal assistance. This means that a lawyer will represent you, but will not charge you any money for their time or work, and (generally) will not take a portion of anything you recover. If you prefer to have an attorney represent you, but you are unable to pay to retain

one, you should consider contacting a local legal services office or state bar association. You may also call law firms and ask whether they have a pro bono practice and if you would qualify for such assistance.

If your income, financial resources, or circumstances make it very hard for you to hire or otherwise find a lawyer, the Court may find that you are “indigent,” which means that you do not have the resources to pay for an attorney. Typically, the Court is asked to make this finding when a pro se litigant files a document with the Court known as an application to proceed “in forma pauperis.” Information regarding the in forma pauperis application and the effects of being permitted to proceed in forma pauperis are discussed later in this Handbook.

If you are granted in forma pauperis status, you may request, by submitting a written motion, that the Court appoint counsel for you if you are otherwise unable to obtain a lawyer. Before you submit such a motion, you must try to obtain counsel on your own.

The Court considers requests for counsel in light of a number of factors set forth by the district court’s Local Rules. Usually, the Court must determine whether the party’s legal position in the lawsuit is of substance. If so, the Court will then consider several other factors, including how complex the legal issues are in the particular case and the indigent party’s ability to investigate and present his or her case.

If you are granted permission to proceed in forma pauperis, and you decide to make a motion for the appointment of counsel, you must include with your motion details of your efforts to obtain counsel by means other than court appointment. In addition, you generally must include communications from the attorneys that you contacted regarding your case and what they indicated were their costs and/or other reasons for why you did not retain them. Failure to include

documentation that substantiates your attempts to obtain counsel on your own could result in the denial of your motion for appointment of counsel.

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Before you bring a lawsuit, you should become familiar with the rules that explain the Court’s procedures for preparing and filing a complaint. These rules are the Federal Rules of Civil Procedure (FRCP), and they apply in every federal court in the country. A party can be sanctioned (penalties imposed) for violating the FRCP. 3 You can review the FRCP in any law library or on the website for the District Court where you will be filing your complaint. In addition, you must follow your particular District Court’s “Local Rules,” also found on the website for the District Court where you are filing your complaint.

The first step in filing a lawsuit is to prepare a complaint. Most district courts have forms for preparing a complaint, including a general form for pro se cases, and specific forms for prisoner pro se cases, employment discrimination cases, and Social Security disability appeals. These forms are usually available on each District Court’s website under the “Forms” tab on the homepage. If you choose to prepare your own complaint, the following information should be included.

A complaint caption or heading specifies the Court in which the suit is brought and the names of the parties. The top of the first page should contain the case caption, which includes the name of the Court, the names and addresses of all parties, and a blank space for the case number. The case number will be assigned once the complaint is filed with the Court. The case caption should appear as follows:

3 For more information about sanctions, see Federal Rules of Civil Procedure 11 and 37.

IN THE UNITED STATES DISTRICT COURT FOR THE   DISTRICT OF [STATE]

[Plaintiff’s Name :

123 Street Name

City, State Zip Code], : Case No.  

Plaintiff, :

vs. : COMPLAINT

[Defendant #1’s Name :

456 Street Name

City, State Zip Code] :

[Defendant #2’s Name (Ifapplicable) :

789 Street Name

City, State Zip Code], :

Defendants. :

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You should list on page 1 of your complaint the name and address of the person filing the complaint (the plaintiff), and the names and addresses of all individuals or entities against whom you are seeking relief (the defendants). 4

In certain kinds of cases, the parties are entitled to a jury trial. The best way to ensure your right to a jury trial is to make the demand when you file your complaint by either writing the words “Jury Trial Demanded” on the first page of your complaint or, if you are using a form complaint available from the Clerk’s Office, by checking the option for a jury trial on the first page of the form complaint.

4 The name and address of each plaintiff and defendant may also be stated in numbered paragraphs in the complaint.

The body of the complaint should contain numbered paragraphs which provide the following information.

a. Jurisdiction. The complaint should state why the Court has jurisdiction over the case. As discussed previously, a District Court has limited authority to hear cases. It can only hear cases over which the district court has jurisdiction. Pro se litigants often file the following types of federal cases: a denial of civil rights under 42 U.S.C. § 1983; employment discrimination under 42 U.S.C. § 2000e, et seq.; and inmates challenging the conditions of their confinement. The first numbered paragraphs should also state why the court you are filing in has proper “venue” for this claim.

b. Numbered paragraphs. The complaint must contain numbered paragraphs, with each paragraph containing a statement of those facts that are alleged to have caused the damage claimed. These allegations, or claims, should be concise and clearly written. There should be a separate numbered paragraph for each factual allegation made. Each paragraph should specify to the greatest extent possible: (i) the alleged act of misconduct; (ii) the date on which the misconduct occurred; (iii) the names of each and every individual who participated in that misconduct; (iv) the location where the alleged misconduct occurred; and (v) the connection between the misconduct and your causes of action. The statement of facts should include a description of what the defendant(s) did or failed to do and how those acts or omissions caused injury or damage, as well as a description of any injury you sustained and what medical treatment, if any, was required. It is important to be as specific as possible in stating the facts. Names, dates, and events should be described accurately and as succinctly as possible. Failure to allege facts demonstrating that each defendant was

personally involved in and/or responsible for the alleged incident or harm may result in dismissal of that defendant or the case. In short, these numbered paragraphs must state the facts supporting the claim; what happened, where it happened, when it happened, how it happened, and who was involved.

c. Legal basis. The complaint must also state the legal basis for the claim. This would be a description of how you believe the defendant(s) violated your rights, and a statement of which of your legal rights you believe the defendant(s) violated. If you are filing your lawsuit on the basis that the defendant violated a law, you must identify that law in your complaint. For example, if you believe an employer discriminated against you, you must cite to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq..

d. Relief sought. The complaint must state or describe the relief which is being sought. You must state what it is that you wish the Court to do. This could be requesting that the Court award money damages or issue a court order prohibiting particular conduct, directing that certain action be taken, and/or directing something the plaintiff wants the court to do to correct the situation. This information is contained in a closing or final paragraph, which is not numbered (note: this is the only paragraph in the complaint that is not numbered), outlining the relief you are asking to Court to provide.

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Signature. The individual(s) filing the complaint must sign and date the complaint, and underneath the signature(s), type or print their full names, addresses, and phone numbers. 5 If there is more than one plaintiff, the complaint must contain an original signature for each

5 Your signature, address, and phone number must always appear on all documents filed with the Court.

plaintiff. By signing or filing the complaint you are certifying to the Court that the statements you have made in the complaint are true, and that you are not filing the complaint for an improper purpose such as to harass the defendant(s).

Certain sensitive information about individuals involved in the claim cannot be included in documents filed with the Court. If personal information is necessary for the complaint, personal identifiers must be redacted (blackened out) as follows:

· minor children must not be identified by their full names, but by their initials (e.g., A.B., C.D.);

financial account numbers must be redacted except for the last four digits (e.g., xxxx-xxxx- 1234);

· Social Security and taxpayer-identification numbers must be redacted except for the last four digits (e.g., xxx-xx-1234); and

· dates of birth must include the year only (e.g., X/X/1980).

Once you have prepared the complaint, you must file the complaint in the District Court Clerk’s Office. The following procedures regarding copies of the complaint, filing fees, the civil cover sheet and the summons forms must be followed.

You must file the original complaint with the Court and provide the Court with a copy for each defendant you name. If the defendant is the United States, an agency of the United States, or an officer or employee of the United States who is being sued for acts or omissions related to his/her employment, you must provide the Court three (3) copies of the complaint. You should also keep a copy of the complaint for your own records.

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Generally, you must pay a filing fee when you file your complaint, and this fee must either be paid in full at the time you present your complaint to the Court for filing or, if you are unable to pay the fee, you must submit an application to proceed in forma pauperis, along with your complaint (discussed below). The current filing fee for a complaint is $400.00, and payment is due when you file the complaint. 7

In addition to the complaint you must also complete a Civil Cover Sheet. This form is used to help the Clerk’s Office open your case and gather statistical information. The form is also available on the District Court’s website or in the Clerk’s Office.

When you complete the form, you will need to include the county of residence of the first listed Plaintiff and Defendant. You will also need to identify the basis of jurisdiction. Federal question jurisdiction (the case involves a violation of federal law or the United States Constitution) and diversity jurisdiction (the plaintiff and defendant are citizens of different states and the case involves an amount of controversy greater than $75,000) are the two most common.

Complete the form as best as you can. If you do not know how to provide some of the information required, then leave the space for that information blank. Note that the Civil Cover Sheet contains instructions for completing the form on the second page. The District Court’s website will also provide the “Nature of Suit” codes to assist you in completing Section IV.

6 These procedures for filing fees do not apply to incarcerated individuals. If you are incarcerated, you will need to check the District Court’s website or with the Clerk’s office for instructions on how to pay the filing fee.

7 You should check the District Court’s website for further information concerning whether you can pay by cash, check, cashier’s check, money order, or credit card.

All plaintiffs must complete and submit a summons form for each defendant at the same time the complaint is filed. You need to prepare a summons for each defendant named in your lawsuit. The summons form is available on the District Court’s website or from the Clerk’s Office. In completing this form, you must: (1) fill out the case caption; (2) provide the name and address where the defendant is to be served with the complaint; and 3) provide your name and address. Do NOT complete the Proof of Service portion of the summons form until service of process has been completed.

While you may be able to file your lawsuit in person with the Clerk’s office, most filing in federal court is done using an electronic system. The judge may order that you use this electronic system to understand what is happening with your case and to file documents. CM/ECF (Case Management/Electronic Case Files) is the name of this electronic system. Members of the public can gain access to this system using a system called PACER (Public Access to Court Electronic Records). You can contact your District Court Clerk’s office to obtain information about how to use PACER to file documents, access documents filed by others (including orders of the judge), print, and download documents.

“Service of process,” is the procedure that officially notifies a defendant in person that a lawsuit has been filed against him or her. When “served” the defendant receives a copy of the complaint so that he/she knows what the lawsuit is about. Further, the summons (discussed above) notifies the defendant when they must respond to the complaint. Under Federal Rule of Civil Procedure 4, you must either obtain a waiver of service from each defendant or serve each

defendant through formal service or personal service within 90 days after the complaint has been filed in district court. Mailed summons are typically not allowed.

“Waiving service” means agreeing to give up the right to service in person and instead accepting service by mail. If a defendant waives service, the plaintiff (you) will not have to go to the trouble or expense of serving that defendant. If the defendant agrees to waive service, you need to have the defendant sign and send back to you, a form called a “waiver of service,” which you then file with the Court. To complete the “waiver of service” process, you must complete two forms and set certain documents to the defendant(s). The two forms you need to complete are:

a. “Notice of a Lawsuit and Request to Waive Services of Summons”

b. “Waiver of Service of Summons.”

Both forms are available at the Clerk’s Office or on the District Court’s website.

The documents you need to send to each named defendant are:

a. A copy of the complaint you filed;

b. One completed Notice of Lawsuit Form;

c. Two completed Waiver Forms; and

d. One self-addressed stamped envelope (for the defendant’s return of the Waiver Forms).

If a defendant sends back the signed waiver of service, you do not need to do anything else to serve the defendant. You simply need to file the defendant’s signed waiver with the Court and save a copy for your files. If the defendant does not return a signed waiver of service by the due

8 The waiver of service rule does not apply if the United States is named as a defendant.

date, you need to arrange to serve that defendant in one of the other ways approved by Federal Rule of Civil Procedure 4 (see below).

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If the defendant does not return the waiver of service form within the specified time, you must notify the Clerk of the court in writing, prepare a summons for each Defendant, and ask the Clerk’s Office to issue the summonses you prepared. 9 You may ask the Court to order the defendant to pay the costs you incurred serving that defendant. You must serve the defendant within 90 days from the filing date of the complaint (or, if you applied for IFP, from the date the Court ruled on your IFP application). If you do not properly complete service of process within the 90-day deadline, your case may be dismissed. Be sure to carefully check the FRCP to make sure you properly serve the defendant(s) you named in the complaint.

Service of process may be accomplished by “personal service.” This means that the summons and complaint are hand-delivered to the defendant. You, as the plaintiff, CANNOT personally serve the defendant. However, another person can personally serve the defendant if that person 1) is at least 18 years of age and 2) is not a plaintiff or defendant in the case. Alternatively, you can hire a private process server to serve the defendant for a fee. In either case, Federal Rule of Civil Procedure 4 requires you to file proof with the Court that the complaint has been served on the defendant. The person serving the summons must leave a copy of both the summons form and the complaint with the defendant. On the back of the summons is a section

9 The only exception to this rule is if you are incarcerated AND are suing a government official. In that case, you should wait for the judge to complete a preliminary review, after which you will receive an order from the Court and should follow the instructions in that order regarding service.

referred to as the return of service or “proof of service,” which must be completed by the person who served the summons. The person who serves the summons must record his or her name, the name of the person whom he or she served, and the date and time of the service. Service of process is not complete until the original summons form, with the completed return of service, has been filed with the court.

If you name as a defendant the United States, a United States agency, or an officer or employee of the United States (who is being sued for acts or omissions related to his/her employment), you must serve the complaint and summons on three individuals:

1. the named defendant;

2. the Attorney General of the United States in Washington, D.C.; and

3. the United States Attorney for the District Court in which you are filing your complaint.

The waiver of service rule DOES NOT APPLY to the United States. Formal service upon the federal government or any of its agencies can be accomplished by certified mail (return receipt required) with the properly executed summons.

If you cannot afford to pay the filing fee, you may request to waive the fee by filing an application to proceed without paying fees or costs, or “in forma pauperis.” To apply for in forma pauperis status, you must present the following documents to the Clerk’s Office:

1. Application to Proceed In Forma Pauperis;

2. Civil Cover Sheet;

3. Original complaint with copies for service on each of the defendants;

4. All service forms, which includes the summons and USM 285 or Waiver of Service of Summons (see below).

You can obtain an in forma pauperis application on the District Court’s website or from the Clerk’s Office. The in forma pauperis application asks you to provide information about your (and your spouse’s) finances (e.g., your income, assets and liabilities). In filling out the in forma pauperis application, you must answer all questions truthfully and completely. You must also sign the statement under penalty of perjury. In addition to waiving the obligation to pay the filing fee, if you are granted permission to proceed in forma pauperis, you are also entitled: (1) to submit a motion for appointment of counsel; and (2) to have your complaint served on the defendant by the

U.S. MarshalsService.

If your in forma pauperis application is approved, the Court will arrange for the Clerk’s Office or the U.S. Marshal Service to complete service of process on your behalf. In in forma pauperis cases, the summons will not be issued until after the judge reviews the complaint. If the Court determines, based upon the facts stated in your complaint, that you will not be successful in your case (e.g., you fail to state a claim upon which relief may be granted, your lawsuit is frivolous or malicious, or the named defendant is immune from liability), the Court can dismiss your case at that stage. See 28 U.S.C. § 1915(e)(2). Likewise, the Court can dismiss your complaint at any

time if you were granted IFP status and the Court later determines that your allegation of poverty was untrue.

However, if after conducting a preliminary review of the complaint, the judge finds that the complaint states a claim upon which relief may be granted, the judge will then order that a summons form be issued against the defendant. The judge will also appoint the Clerk of Court or the United States Marshals Office to make service. In all instances, however, you are responsible

for completing and providing the Clerk’s Office with the appropriate service forms This consists of the following service documents for each named Defendant:

1. A copy of the complaint you filed for each Defendant;

2. One summons form for each Defendant;

3.  

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One U.S. Marshal Form for each Defendant. 10

Once the forms are properly completed and filed, the Clerk’s Office will officially issue the summons (e.g., an authorized Court employee signs the form and embosses it with the Court’s official seal). The Clerk’s Office will then deliver the summons and other materials to the U.S. Marshal Service, which will serve the defendant on your behalf. You will be notified when service has been accomplished.

1. Answer

If service is made on a defendant by summons, the defendant has twenty-one (21) days from the date of service of the complaint to file an answer with the court. However, if the defendant is the United States or a federal official, the defendant has sixty (60) days from the date of service to file an answer. In an answer, a defendant admits or denies each of the plaintiff’s allegations. The answer can also include affirmative defenses. It is important that the defendant admit, deny, or clarify each allegation made by paragraph number. Once the defendant files an answer, the case moves to the next phase.

If a defendant has been properly served with a complaint, but fails to file any response in

10 These forms can be found on the District Court’s website or obtained from the Clerk’s Office.

the required amount of time, then that defendant is considered in “default.” Once the defendant is in default, the plaintiff can ask the Court for a default judgment, which means that the plaintiff wins the case and may take steps to collect on the judgment against that defendant.

If a defendant is in default, the plaintiff should file a “request for Clerk’s entry of default” AND proof that the defendant has been served with the complaint. If the Clerk of Court approves the request, he or she will then enter default against the defendant. Once the Clerk has entered default against the defendant, the plaintiff may then file a “Motion for Default Judgment” supported by: (1) a declaration showing that the defendant was served with the complaint but did not file a written response within the required time for responding; and (2) a declaration proving the amount of damages claimed in the complaint against the defendant. There are special rules for default judgments against minors and the U.S. government and its officers and agents, which are explained in Federal Rule of Civil Procedure 55.

A defendant against whom default or a default judgment has been entered may make a motion to set aside the default or default judgment. The Court will set aside an entry of default or a default judgment for good cause or for one of the reasons listed in Rule 60(b), which includes mistake, fraud, newly-discovered evidence, the judgment is void, or “any other reason that justifies relief.”

In lieu of filing an answer to the complaint, a defendant may file a motion to dismiss, which asks the Court to dismiss the case. The motion argues that there are problems with the way the complaint was written, filed, or served. A motion to dismiss may be filed for any of the reasons set forth in Federal Rule of Civil Procedure 12(b): lack of subject-matter jurisdiction; lack of personal jurisdiction; improper venue; insufficient process; insufficient service of process; failure

to state a claim upon which relief can be granted; and failure to join a party under Rule 19.

The motion to dismiss must state the specific facts and legal arguments supporting the stated reasons for dismissal. A defendant may move to dismiss all the claims in the complaint or just certain claims.

A court may deny or grant the motion to dismiss as to each claim that is the subject of the motion. If the Court denies the motion to dismiss, the defendant must file an answer within fourteen (14) days, and the case moves to the next phase. See Federal Rule of Civil Procedure 12(a)(4). If the Court grants the motion to dismiss without prejudice, the plaintiff may submit an amended complaint that corrects the deficiencies identified by the Court within a time period specified by the Court. Finally, if the Court grants the motion to dismiss with prejudice, the case is over as to those claims.

The defendant argues that the Court does not have the legal authority to hear the kind of lawsuit the plaintiff filed. In other words, the defendant contests that the case neither involves a violation of a federal law or the U.S. Constitution, nor is between citizens of different states involving an amount in controversy greater than $75,000.

The defendant argues that the Court has no legal authority to hear the case because the defendant has so little connection with the district in which the case was filed. The defendant must show that it is not a resident of the state in which the case was brought and that it did not even have “minimum contacts” with the state.

The defendant argues that the lawsuit was filed in the wrong geographical location.

The defendant argues that the plaintiff did not prepare the summons correctly or did not correctly serve the defendant.

The defendant argues that even if everything in the complaint is true, the defendant did not violate the law. Each type of claim requires that the plaintiff allege and show facts to support certain elements. For example, a negligence claim requires that the plaintiff allege and show facts to support a duty, a breach of the duty, proximate cause, and damages. Here, the defendant is

asserting that the plaintiff did not plead sufficient facts to support all requisite elements of the

plaintiff’s claim.

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. A party must be included

in a lawsuit when: (1) a court cannot accord complete relief among the parties without the additional party’s presence, or (2) the party’s absence impedes its ability to protect its interest or leaves the party vulnerable to incurring inconsistent obligations because of the interest. See Federal Rule of Civil Procedure 19.

If a defendant files 

 Title: Pro Se Litigation in California State Court: Techniques, Strategies, and Helpful Hints

Introduction:

Pro se litigation, or representing oneself in court without the assistance of an attorney, can be a challenging endeavor. However, with the right techniques, strategies, and helpful hints, individuals in California can navigate the state court system effectively. This treatise aims to provide a comprehensive guide for pro se litigants in California state court, offering valuable insights and practical advice to help achieve a successful outcome.

I. Understanding the Basics of Pro Se Litigation in California:

1. Familiarize Yourself with the California State Court System:
   - Gain a basic understanding of the structure, hierarchy, and jurisdiction of California state courts.
   - Identify the specific court where your case falls under, such as small claims court, superior court, or appellate court.

2. Research and Comprehend Applicable Laws and Rules:
   - Conduct thorough research on the relevant laws, statutes, regulations, and court rules that pertain to your case.
   - Familiarize yourself with the California Code of Civil Procedure, California Rules of Court, and any local rules specific to the court where your case is filed.

3. Understand the Procedural Steps and Timelines:
   - Learn about the various stages of litigation, including filing a complaint, serving the opposing party, discovery, pretrial motions, trial, and post-trial procedures.
   - Be aware of the specific deadlines and timeframes associated with each stage, ensuring compliance with procedural requirements.

II. Effective Techniques for Pro Se Litigation:

1. Thorough Case Preparation:
   - Gather and organize all relevant documents, evidence, and supporting materials for your case.
   - Create a case timeline, outlining key events, deadlines, and necessary actions.
   - Develop a comprehensive understanding of the legal arguments and defenses applicable to your case.

2. Clear and Concise Legal Writing:
   - Draft pleadings, motions, and other legal documents using clear and concise language.
   - Follow the proper formatting and citation rules, adhering to court requirements.
   - Present your arguments logically and persuasively, supporting them with relevant legal authorities and evidence.

3. Effective Communication and Courtroom Decorum:
   - Maintain professionalism and respect when communicating with opposing parties, court staff, and judges.
   - Follow courtroom etiquette, including proper attire, addressing the court, and waiting for your turn to speak.
   - Clearly articulate your arguments, objections, and responses during hearings or trial proceedings.

III. Strategies for Pro Se Litigation Success:

1. Seek Legal Information and Resources:
   - Utilize online legal resources, self-help centers, and libraries to access legal information and forms specific to California state court.
   - Consider consulting with legal aid organizations or pro bono attorneys who may provide limited assistance or guidance.

2. Utilize Alternative Dispute Resolution (ADR) Methods:
   - Explore mediation, arbitration, or settlement conferences as potential avenues for resolving disputes outside of court.
   - Familiarize yourself with the ADR processes, rules, and benefits to effectively negotiate and reach a favorable resolution.

3. Engage in Diligent Discovery:
   - Understand the discovery process, including interrogatories, requests for production of documents, and depositions.
   - Prepare well-crafted discovery requests and responses, ensuring compliance with the rules governing discovery.

4. Master Courtroom Procedures and Techniques:
   - Observe courtroom proceedings prior to your own trial to familiarize yourself with the process.
   - Practice presenting your case, including direct and cross-examination techniques, opening and closing statements, and evidentiary objections.

IV. Helpful Hints for Pro Se Litigation in California:

1. Maintain a Professional Demeanor:
   - Remain calm, composed, and respectful throughout the litigation process.
   - Avoid personal attacks or emotional outbursts that may undermine your credibility.

2. Stay Organized and Detail-Oriented:
   - Keep meticulous records of all case-related documents, correspondence, and communications.
   - Create a system to track deadlines, appointments, and court appearances.

3. Seek Assistance When Necessary:
   - Recognize your limitations and seek help from professionals, such as legal document assistants, paralegals, or consultants, for specific tasks or guidance.

4. Continuously Educate Yourself:
   - Stay updated on changes in California laws, rules, and court procedures that may impact your case.
   - Attend legal workshops, seminars, or webinars to enhance your knowledge and skills in pro se litigation.

Conclusion:

Pro se litigation in California state court requires careful preparation, a strong understanding of the legal system, and effective strategies. By following the techniques, strategies, and helpful hints outlined in this treatise, pro se litigants can navigate the complexities of the California state court system with confidence. Remember, while representing oneself can be challenging, with proper preparation and diligence, pro se litigants can achieve successful outcomes in their cases.