Pro_Se_Non-Prisoner_Handbook.pdf

=== Pro_Se_Non-Prisoner_Handbook.pdf === Pro Se Handbook for Non-Prisoners: A Simple Guide To Filing An Action Without the Assistance of Counsel United States District Court Western District of Kentucky TABLE OF CONTENTS PURPOSE OF THIS HANDBOOK.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 WHAT DOES PRO SE MEAN? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PRO SE FORMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ORGANIZATION OF FEDERAL COURTS.. . . . . . . . . . . . . . . . . . . . . . . . . . .

2 THE WESTERN DISTRICT OF KENTUCKY.. . . . . . . . . . . . . . . . . . . . . . . . . 2 SOME THINGS YOU SHOULD KEEP IN MIND FOR ALL ACTIONS. . . . 3 FILING YOUR COMPLAINT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 PURPOSE OF THIS HANDBOOK The purpose of this handbook is to provide general information about the federal court system and to assist individuals wishing to file a complaint in the United States District Court for the Western District of Kentucky without the assistance of counsel.

Note: If you are a prisoner, the Court also has produced a Pro Se Prisoner Handbook that is available upon request from the Clerk’s Office and available on the Court’s website, which is http://www.kywd.uscourts.gov/. Click here to view the Pro Se Prisoner Handbook. It may also be available in a prisoner’s jail or prison library. You should not expect this handbook to answer all of your questions, and it does not cover all types of actions that could be filed.

You should consider it as a starting point only. This handbook is not legal advice and should not be used as a substitute for legal advice by an attorney. It should not be cited as legal authority.

WHAT DOES PRO SE MEAN?

If you are representing yourself without the benefit of an attorney, you are known as a “Pro Se Litigant.” “Pro se” is a Latin term meaning “for oneself.” As a pro se litigant, you enjoy every right entitled to you under the law. You will not be penalized because you are not represented by an attorney. At the same time, pro se litigants are expected to follow the rules that govern the practice of law in the federal courts. Pro se litigants should be familiar with the Federal Rules of Civil Procedure and the Local Rules of this Court.

If you are viewing this document on the internet, the hyperlinks can be used to view the pertinent rules. Additionally, the Court’s Local Rules are available at the Court’s website. Many of those rules are summarized in this handbook. The Federal Rules of Civil Procedure are also available at http://www.law.cornell.edu/rules/frcp/.

As a pro se litigant you may not authorize another person who is not an attorney to appear for you. While you may receive help from other non-attorneys in drafting your pleadings and other papers, you must personally sign your complaint and all additional papers filed with the Court. If several individuals commence an action together, each person must personally sign the complaint.

PRO SE FORMS

The Clerk’s Office has forms available for use by pro se, non-prisoner litigants including the following forms: General Complaint Form; Title VII Form; Non-prisoner Application to Proceed Without Prepayment of Fees; Motion Form & Instructions; Notice of Appeal Form; Copy Request Form; Notice of Change of Address Form; and Social Security Form (for use when seeking judicial review of a decision of the Commissioner of Social Security). You can obtain free copies of any of the Court’s pro se forms on the Court’s website. Click here to view the Court’s pro se forms. Free copies are also available at the Clerk’s Office in each division.

1 ORGANIZATION OF FEDERAL COURTS The federal court system is made up of courts on three different levels: the district courts, the circuit courts, and the United States Supreme Court. The first level is comprised of the district courts. District court is where your action will begin and where it will be decided. Congress has divided the country into ninety-four districts.

Kentucky has two districts, the Eastern District of Kentucky and the Western District of Kentucky. This handbook covers actions in the Western District of Kentucky. The rules and procedures of other federal district courts may be different. The federal appeals courts, the second level, are referred to as circuit courts.

There are thirteen United States Courts of Appeals. The United States Court of Appeals for the Sixth Circuit hears appeals from the federal district courts in Kentucky, Michigan, Ohio, and Tennessee. Generally, every litigant has a right to appeal a final district court decision to circuit court. The Sixth Circuit Court of Appeals can be contacted as follows: Office of the Clerk United States Court of Appeals for the Sixth Circuit 540 Potter Stewart U.S.Courthouse 100 E. Fifth Street Cincinnati, OH 45202-3988 Phone: (513) 564-7000 The United States Supreme Court, the third and highest level, hears select cases from the circuit courts and from the highest state courts.

However, since the Supreme Court has the authority to select which cases it chooses to hear, it hears only a small percentage of the cases it is asked to review. The United States Supreme Court can be contacted as follows: Supreme Court of the United States One First Street N.E. Washington, DC 20543 THE WESTERN DISTRICT OF KENTUCKY The Western District of Kentucky is divided into four jury divisions: Bowling Green, Louisville, Owensboro, and Paducah. Each jury division covers certain counties. The Clerk of Court has an office in each of the four divisions.

A civil action may be filed in any division. Civil actions are assigned to particular jury divisions by the Clerk of Court. In the event of improper assignment, the case will be transferred to the correct jury division. The validity of the filing is not affected by the Clerk’s improper assignment.

See Local Rule 3.2. Pleadings, motions, and other papers may be filed in any of the four divisional offices. They need not be filed in the same division where the case is pending. Below is a listing of the counties covered by each division and the address and phone number of the Clerk’s Office in each division.

2 Bowling Green The following counties are in the Bowling Green Division: Adair, Allen, Barren, Butler, Casey, Clinton, Cumberland, Edmonson, Green, Hart, Logan, Metcalf, Monroe, Russell, Simpson, Taylor, Todd, and Warren. Clerk’s Office 241 East Main Street, Suite 120 Bowling Green, KY 42101-2175 Phone: (270) 393-2500 Louisville The following counties are in the Louisville Division: Breckinridge, Bullitt, Hardin, Jefferson, Larue, Marion, Meade, Nelson, Oldham, Spencer, and Washington. Clerk’s Office 601 W. Broadway, Rm 106 Gene Snyder United States Courthouse Louisville, KY 40202 Phone: (502) 625-3500 Owensboro The following counties are in the Owensboro Division: Daviess, Grayson, Hancock, Henderson, Hopkins, McLean, Muhlenberg, Ohio, Union, and Webster. Clerk’s Office 423 Frederica Street, Suite 126 Owensboro, KY 42301-3013 Phone: (270) 689-4400 Paducah The following counties are in the Paducah Division: Ballard, Caldwell, Calloway, Carlisle, Christian, Crittenden, Fulton, Graves, Hickman, Livingston, Lyon, McCracken, Marshall, and Trigg.

Clerk’s Office 501 Broadway, Suite 127 Paducah, KY 42001-6801 Phone: (270) 415-6400 SOME THINGS YOU SHOULD KEEP IN MIND FOR ALL ACTIONS (cid:84) You must pursue your case diligently. It is very important to be diligent in pursuing your case. All parties must comply with the Court’s deadlines and orders. If you cannot comply with a deadline, it is your responsibility to file a motion for additional time.

You should not assume that the Court will simply “know” you need more time. If you fail to prosecute your case diligently, it could be dismissed. (cid:84) The Court must be able to contact you in writing at all times. The Court will communicate with you via mail.

Local Rule 5.2 provides that “failure to notify the Clerk of an address change may result in the dismissal of the litigant’s case or other appropriate sanctions.” Always keep the Court aware of your current address. If you change 3 addresses while your action is pending, it is VERY IMPORTANT for you to provide the Court with your new address in writing. Do not expect the Court to locate you. When you file a notice of a change of address with the Court, write all your open case numbers on it.

Click here to view a copy of the Court’s change of address form. (cid:84) If you want the Court to do anything in your action, you must file a motion. Federal Rule of Civil Procedure 7 states that “a request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought.” Unless you are physically in front of the Judge at a hearing or trial, the only way the Court can take action on your case is for you to file a formal, written motion.

It will not do you any good to write a letter to or call the Clerk’s Office or the Judge. The Clerk’s Office has an approved motion form for use by pro se litigants. It contains an instruction page that explains how to prepare, file, and serve your motion. You are strongly encouraged to use the motion form if you need to file a motion in your action.

You may request one from the Clerk’s Office, or it is available on the Court’s website. Click here to view a copy of the Court’s motion form and instructions. (cid:84) You should keep a copy of everything you file in your action. You should keep a copy of everything you file for your future use.

If you cannot afford photocopies, you can make a handwritten copy for yourself. The Clerk’s Office does not provide free copies of documents. Copies of electronically stored records are ten cents per page. Copies of paper documents are fifty cents per page with the exception of Opinions which are twenty-five cents per page.

A copy request form is available by request from the Clerk’s Office. All copies must be paid for in advance before the Clerk’s Office will complete your copy request. Click here to view the Court’s copy request form. (cid:84) You should not include sensitive information in any court filing.

You should not include sensitive information in any document filed with the Court unless such inclusion is necessary and relevant to the case. Any personal information you include will 1 be available over the internet via WebPACER. If sensitive information must be included, the following personal identifiers must be partially redacted from the document whether it is filed on paper or electronically: A. B. SOCIAL SECURITY NUMBERS. If an individual’s social security number must be included in a document, only the last four digits of that number should be used.

NAMES OF MINOR CHILDREN.

If the involvement of a minor child must be mentioned, only the initials of that child should be used. 1 WebPACER is a website that allows public access to filings in the Court’s electronic case filing system (called Case Management/Electronic Case Files, or CM/ECF).

4 C. D. DATES OF BIRTH.

If an individual’s date of birth must be included in a document, only the year should be used.

FINANCIAL ACCOUNT NUMBERS.

If financial account numbers are relevant, only the last four digits of these numbers should be used. It is the responsibility of the parties to be sure that all pleadings and other papers comply with the rules of this Court requiring redaction of personal identifiers. If you include sensitive information about yourself in a filing, the Clerk’s Office will not redact it for you. Click here to view the Court’s Amended Notice of Electronic Availability of Civil Case File Information.

(cid:84) What the Clerk’s Office Can and Cannot Do For You. The Clerk’s Office is here to provide procedural assistance and help you in filing your documents. Remember though that the Clerk’s Office staff are not your attorneys and cannot give you legal advice. The Clerk’s Office maintains an automated record, or docket, for every case that is filed.

The docket is a chronological summary of all significant events in the case. The docket can be reviewed on the public access terminals located in the Clerk’s Office; or you can request the Clerk’s Office to mail you a copy of your docket sheet. Copies of docket sheets are ten cents per page. The Clerk’s Office can: (cid:60) (cid:60) (cid:60) (cid:60) (cid:60) send you copies of forms check on the status of your action and send you a docket sheet make copies of requested court documents upon receipt of copying fees confirm that your filings have been docketed answer procedural questions like how much time you have to file a response The Clerk’s Office cannot: (cid:60) (cid:60) (cid:60) (cid:60) (cid:60) (cid:60) (cid:60) tell you whether this is the proper court in which to file your complaint tell you which form to use or whom you should name as defendants recommend how you should proceed in your case look up case law for you interpret statutes, case law, or rulings for you provide you with the reasons for a judge’s decision tell you when a judge will respond to a motion or issue a ruling in a case FILING YOUR COMPLAINT Use of a court-approved form The Court has approved forms for pro se parties who wish to file complaints, including a General Complaint Form, a Title VII Form, and a Social Security Form.

You must select which form is most appropriate for your claim. If you file a complaint that is not on a court-supplied form, the Clerk will accept the paper for filing and forward it to an appropriate judicial officer for 5 review. You may be directed to re-submit the complaint on an approved form. Local Rule 5.2(b) provides that a pro se litigant’s failure to file his or her complaint on a court-supplied form after having been instructed to do so by the Court may be grounds for dismissal.

Summons forms You must prepare a summons for each defendant you have sued. Click here to view a copy of the summons form. See page 8 regarding service of the summons. Filing Fees At the time you file your complaint, you must either pay the fees in full or file a fully completed non-prisoner application to proceed without prepayment of fees.

Click here to view the Court's filing fees: https://www.kywd.uscourts.gov/court-fees. Electronic filing The Court requires that attorneys file all documents through an electronic case filing system (called Case Management/Electronic Case Files, or CM/ECF) through which attorneys file and view court documents over the internet. However, pro se parties are required to submit and serve paper originals of all their documents. The Clerk’s Office then scans the pro se party’s documents into the CM/ECF system so that those documents can be viewed on-line by the attorneys who represent the opposing party or parties.

Attorneys are required to serve a paper copy on pro se parties through the mail, and the Court will mail a paper copy of any orders entered in the case to the pro se party. In addition to receiving mailings of paper documents, you may view documents filed in your case electronically for free on the public access terminals located in the Clerk’s Office. You may also view documents through the U.S. Court PACER system. To establish an access account, contact PACER at (800) 676-6856 or click here for PACER’s website.

There is a small fee to view documents in PACER. If you wish to file documents electronically through the CM/ECF system, you must request permission to do so by filing a motion with the Court. If the Court grants the motion, you must undergo training on CM/ECF provided by Court personnel. What happens after my complaint has been filed?

1. You will receive a case number. Your case will be assigned a civil action number and be assigned to a particular Judge. After you receive your case number, you should write it on all documents you send to the Court that relate to your action.

Do not presume that the Clerk of Court will know what action you want your papers filed in. It is your responsibility to write your case number on your filings. 2. The Clerk of Court will review your complaint for any deficiencies.

The Clerk of Court will review your complaint to make sure you have properly submitted it to the Court. For example, the Clerk of Court will make sure you filed an original, signed 6 complaint, that you paid the filing fee and administrative fee or filed a non-prisoner application to proceed without prepayment of fees, that your complaint has been filed on a court-approved form, and that you included summonses for all the defendants named in your complaint. If you do not properly submit your complaint, you may receive a “deficiency notice” from the Clerk’s Office. The notice will tell you if there is something wrong with your filing and provide you with a period of time to correct the deficiency.

Failure to respond to a deficiency notice from the Clerk’s Office could lead to dismissal of your complaint. 3. If you are seeking permission to proceed without prepayment of fees, the Court will rule on your application. If you are a non-prisoner and if the Court grants your application and permits you to proceed in forma pauperis, you are typically relieved of your obligation to pay the filing fee.

If the Court denies your application, you will be required to pay the filing fee and administrative fee in full. The Court will provide you with an additional period of time to pay the fees. Failure to pay the fees in the time allotted, or to show good cause for failing to do so, could result in dismissal of your case. 4.

If you are proceeding in forma pauperis, the Judge assigned to your case will screen your complaint under 28 U.S.C. § 1915(e)(2). The Court is required by statute to screen your complaint before service under 28 U.S.C. § 1915(e)(2). It provides: Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-- (A) the allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. Your complaint will NOT be served on the defendants until it has been screened by the Court.

Many pro se plaintiffs want to know how long it will take for the Court to screen their complaints. There is no set amount of time. The Court tries to review complaints in a timely manner. However, you must remember that the judges have hundreds of cases assigned to them each year.

Do not be alarmed if you do not hear from the Court immediately after filing your complaint. You can always call or write the Clerk’s Office to check on the status of your case. After the Court has screened your complaint, the Court will issue an order. The order will inform you if any of your claims were dismissed, and if so, why.

If all of your claims are dismissed at the screening stage, then your complaint will not be served on defendants. 7 If any of your claims are allowed to proceed past initial screening for further development, the Court will issue an order informing you what claims will be allowed to proceed. 5. Service of your complaint If the Court allows any of your claims to proceed and you are proceeding in forma pauperis, the Court will direct the United States Marshals Service to serve your complaint and the summonses you prepared on the defendants against whom the action proceeds.

Federal Rule of Civil Procedure 4(c)(3). If the Marshals Service is unable to complete service, it will notify the Court that the summons for that defendant was returned unexecuted. A notation will be placed in the docket sheet. Remember that it is your responsibility to make sure that all the defendants named in your complaint have been served with the complaint.

The most common reason service is not perfected is that the plaintiff has not provided the correct address for the defendant named in the complaint. You may write the Clerk’s Office at any time to check on the status of service. If you paid the filing fee, you are required to serve your complaint and summons on each defendant. You must comply with Federal Rule of Civil Procedure 4 in effectuating service.

If you do not wish to serve each defendant yourself, you may request the Court to direct the United States Marshals Service to serve your summonses and complaint. Fed. R. Civ. P. 4(c)(3). After service of process, the defendant will have a period of time to respond to your 6. complaint. The defendant will either: file an answer, file a motion, or do nothing.

The answer is a formal response to the complaint by the defendant, including any denials of and defenses to the allegations in the plaintiff’s complaint. Under Federal Rule of Civil Procedure 12(a)(1)(A), “a defendant must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.” The requirements for answers are set out in Federal Rule of Civil Procedure 8. Unless directed to do so by the Court, you should not respond to the answer. A motion by a defendant at this stage would likely ask the Court to dismiss the complaint for one of the reasons set out in Federal Rule of Civil Procedure 12.

If the defendant files a motion to dismiss, you will have 21 days from the date of service to respond. In the response, you may explain to the Judge why you believe the action should not be dismissed. The defendant will then be permitted to file a reply within 14 days of the date of service of the response. After the time for filing a reply passes, the motion will be submitted to the Judge for a decision.

If the defendant fails to timely answer or move to dismiss the complaint, you may seek entry of default judgment against the defendant by making a motion for a default under Federal Rule of Civil Procedure 55. 8 7. The Court will direct the parties to agree on a litigation schedule. After the defendants have been served, the Court will issue an order requiring the parties to meet and confer, which usually occurs by telephone, to set deadlines for serving initial disclosures, conducting discovery, filing dispositive motions, and other matters in accordance with Federal Rule of Civil Procedure 26(f).

The order may also refer the case to a Magistrate Judge to conduct a scheduling conference. It is VERY important for you to follow all of the directions and meet all of the deadlines in the order. If you are unable to do so, you should notify the Court in writing before any deadline passes and ask for additional time to comply. If you fail to comply with an order of the Court, your action could be dismissed.

8. Initial disclosures Within 14 days of the parties’ Rule 26(f) conference, unless the parties stipulate or the Court orders otherwise, the parties must provide initial disclosures to the other parties in accordance with Federal Rule of Civil Procedure 26(a)(1)(A). The Rule requires a party to produce the following: the name, address, and telephone number of each individual likely to have discoverable information and the subject of that information, a copy or a description of all documents the party may use to support its claims or defenses, a computation of each category of damages claimed by that party and the documents or evidence on which each computation is based, and any insurance agreement under which an insurance business may be liable for all or part of a possible judgment in the action. 9.

The parties may engage in discovery. Discovery is the process of collecting the evidence necessary to support a claim or defense. During discovery, you may uncover relevant facts and identify documents and witnesses whose testimony can establish those facts. You may obtain evidence from the other parties to the litigation (plaintiffs and defendants), non-parties, and public records.

Federal Rule of Civil Procedure 26(b)(1) states that the parties may obtain discovery regarding any non-privileged matter that is relevant to the claim or defense of any party to an action. You may request any material that is reasonably likely to lead to the discovery of admissible evidence relevant to a claim or defense. The Court will enter a scheduling order setting a discovery deadline. This means that you will not be able to take discovery beyond this date.

Either party can seek additional time. However, there is no guarantee that the Court will grant the request. If you need additional time, you must ask for it in a motion. The discovery process is designed to go forward between the parties, with minimal involvement by the Court.

Only if the parties have disputes or disagreements about the proper scope of discovery and cannot resolve the problems themselves, should the dispute be raised before the Court. Local Rule 37.1 provides that: “prior to filing a discovery motion, all counsel must make a good faith effort to resolve extrajudicially any dispute relating to discovery. The Court will not entertain discovery motions unless counsel have conferred -- or attempted to 9 confer -- with other affected parties in an effort to resolve their dispute.” The party filing the motion must include a certification detailing the efforts that the parties took to try to resolve their disagreement. Unless requested to do so by the Court, discovery requests and responses should not be filed with the Court until relied on by a party.

For example, it would not be proper to file your document requests to the defendant with the Court. They should simply be mailed to the defendant or his counsel if he is represented. However, it would be proper to file the defendant’s answers to your interrogatories as an exhibit to your response to a summary judgment motion if you relied on the answers in your response. The general methods of discovery--depositions, interrogatories, document requests, requests for admissions, subpoenas, and mental/physical examinations--are briefly described below.

Depositions. Depositions are question-and-answer sessions held before trial. In them, one party to a lawsuit asks another person questions about the issues raised in the lawsuit. The answers are given under oath subject to the penalty of perjury and are recorded in some way.

Rules 27 through 31 of the Federal Rules of Civil Procedure explain the procedures for taking a deposition. If the person who will answer the questions is not a party to the lawsuit, Rule 45 explains how they can be made to appear for questioning. Interrogatories. Formal written questions, called interrogatories, may be used to discover information from parties in the action.

You cannot send interrogatories to non-parties. The party answering the interrogatory answers in writing and must sign the answers under oath. If an interrogatory is objected to, the objecting party shall state the reasons for the objection and shall answer to the extent the interrogatory is not objectionable. The interrogatories shall be answered within thirty days after they are served.

Parties are required to supplement their answers to interrogatories as additional information becomes available as provided by Federal Rule of Civil Procedure 26(e)(1). The rules and procedures governing interrogatories are contained in Federal Rule of Civil Procedure 33. Requests for production of documents. Pursuant to Federal Rule of Civil Procedure 34, a written request to produce records, letters, contracts, or other materials; inspect or copy a document; or permit entry upon designated land or other property in the possession or control of the party upon whom the request is served, may be served on any party.

You cannot make requests for production of documents on non-parties. The request shall specify a reasonable time, place, and manner of making the inspection or performing the related acts. The party upon whom the request is served shall serve a written response within thirty days. The response shall state whether the inspection or related activities will be permitted as requested.

If the request is objected to, the reasons for the objection shall be stated. Physical and mental examinations. Pursuant to Federal Rule of Civil Procedure 35, when the mental or physical condition of a party or of a person in the custody or under the legal control of a party is in controversy, the court in which the action is pending may order upon a showing of good cause, the party to submit to a physical or mental examination. 10 Requests for admission.

Pursuant to Federal Rule of Civil Procedure 36, a party may serve upon any other party a written request to admit the truth of certain matters within the scope of Federal Rule of Civil Procedure 26(b)(1). You cannot serve requests for admission on non- parties. The matter is admitted unless, within thirty days after service of the request, the party to whom the request is directed serves upon the requesting party a written answer or objection signed by the party. Failure to answer constitutes an admission.

Subpoenas. Federal Rule of Civil Procedure 45 governs subpoenas. You may use a subpoena to request non-parties to appear and/or produce documents. A motion explaining who or what is being subpoenaed and why must be filed before the subpoenas are needed.

Expenses related to the subpoena, such as witness fees, mileage costs, and copying costs, are to be paid by the person requesting the subpoena. 10. The case may end before a trial either by way of a dispositive motion (motion to dismiss or motion for summary judgment) or a settlement. Dispositive motions are motions that dispose of the case without a complete trial.

Two common types of dispositive motions are motions to dismiss and motions for summary judgment. The scheduling order will provide a deadline for filing dispositive motions. Motion to Dismiss–Rule 12(b). A defendant may move to dismiss a complaint for a variety of reasons.

Some common grounds for dismissal are lack of jurisdiction over the subject matter and failure to state a claim upon which relief may be granted. Sometimes a defendant files a motion to dismiss before filing an answer. Motions to dismiss are governed by Federal Rule of Civil Procedure 12(b). Summary Judgment- Rule 56.

A trial is necessary only when there are disputed issues of material fact. At some point in the case, it may become apparent that the facts in the case are not in dispute, and one or more parties may file a motion for summary judgment. A motion for summary judgment can be filed at any time after the answer is filed. Federal Rule of Civil Procedure 56 governs motions for summary judgment.

If the Court grants the motion in whole, the case will be over, and judgment will be entered in favor of the party who moved for summary judgment. If the Court grants the motion in part, the issues that are in dispute will be tried or scheduled for a settlement conference and those issues on which summary judgment was granted will not be tried. If the Court denies the motion, the case will be set for trial or scheduled for a settlement conference. Settlement.

Another way in which a case may end without a trial is when the parties reach what is called a settlement. A settlement is an agreement between the plaintiff and defendant to resolve the lawsuit. Generally, but not always, it involves a monetary payment to the plaintiff in exchange for the dismissal of the case. The Judge or Magistrate Judge may hold one or more settlement conferences.

Parties can discuss settlement and settle the case at any time and do not need court intervention to settle a case. If a case is settled, a short order will generally be issued dismissing the case. 11 11. 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. Very few cases actually make it this far. In fact, less than two percent of all federal civil cases filed each year are actually tried. There are two types of trials: jury trials and bench trials.

At a jury trial the Court instructs the jury about the law. 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 time frame. The time frame 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.

The Judge sets the date that the trial will begin. When the Judge sets the trial date, he or she usually enters an order setting pretrial deadlines for filing or submitting various documents associated with the trial. Once trial has begun, it usually takes place in the following order: jury selection, opening statements, plaintiff’s evidence, defendant’s evidence, closing arguments, and jury deliberations. Jury selection.

The purpose of jury selection is to pick a jury that can be fair to both sides. This is done in a process called voir dire, during which each potential juror is asked a series of questions by either the parties or the Judge. Potential jurors are eliminated by “strikes.” There are two types of strikes–for cause and peremptory. If a juror can be shown to be unsuitable because he or she is not qualified or cannot be fair, then a strike for cause is in order.

Each party receives a set number of strikes that can be used to strike jurors for any reason (other than discrimination). These are called peremptory strikes, and they do not have to supported by specific reasons. Opening statements. After the jury is chosen, each party may present an opening statement.

The opening statement is a speech made by each side. 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. The purpose of the opening statement is to help the jury understand what to expect and what you consider important.

Presentation of 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 12 admitted. If the opposing party does not object, the Judge may allow the improper evidence to be presented. The plaintiff presents proof first, followed by the defendant. Questioning of witnesses is done by direct examination, cross-examination, redirect, and recross.

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. A motion for judgment as a matter of law is a request to the Judge to decide the outcome of the case. 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 for the jury to find in the plaintiff’s favor. It is governed by Federal Rule of Civil Procedure 50.

Assuming that the Judge does not grant the defendant judgment as a matter of law, after the plaintiff has completed examining each of his/her witnesses, the defendant then presents all of the witnesses that support his/her defenses. 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.

Closing arguments. 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 closing arguments the parties take turns summing up their side to the jury. They argue to the jury why they think the evidence presented shows that they should prevail.

Verdict. In a jury trial 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. A federal jury must be unanimous, which means all the jurors must agree on the verdict. When the jury reaches its decision, the jurors 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 unless one of the parties files a post-judgment motion or an appeal to the United States Court of Appeals for the Sixth Circuit.

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 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 one of the parties makes a post-judgment motion or takes an appeal to the United States Court of Appeals for the Sixth Circuit. 12. Motions after a final judgment There are some motions that can be filed after a final judgment has been entered in your case. Under Federal Rule of Civil Procedure 59 you can file a motion for a new trial or to alter or amend judgment.

Under Federal Rule of Civil Procedure 60 you can file a motion for relief from judgment or order. 13 13. Appeal A comprehensive discussion of the appellate process is beyond the scope of this handbook. However, a few points are discussed below.

Final Judgment Any party to a formal court action has a right to file an appeal to the jurisdictional appellate court from an appealable order entered by the district court. Appeals from cases in the Western District of Kentucky are heard by the United States Court of Appeals for the Sixth Circuit. In general, only final orders or judgments from the district court may be appealed. 28 U.S.C. § 1291.

This kind of appeal is called an appeal as of right. In most cases, a final order or judgment is entered when all issues in the case have been resolved in favor of either the plaintiff or the defendant. In order to appeal, a final order or judgment should be entered on the docket of your case. A final order or judgment is the document which announces the final decision with respect to your case (that is, whether you won or lost) and closes the case with the district court.

You have thirty days (or sixty days if the case involves a party who is the United States, a federal agency or federal employee) from the date that the final order or judgment was entered on the docket to file a Notice of Appeal. The Notice of Appeal is filed in the district court where the judgment you are appealing was entered. If you miss the deadline, you may file a motion for extension of time. There is no guarantee your motion will be granted so you should make every effort to meet the deadline.

A Notice of Appeal is a one-page document containing your name, a description of the final order or judgment (or part thereof) being appealed, and the name of the court to which the appeal is taken (the Sixth Circuit). The fee for filing a Notice of Appeal can be found on the Court's website at https:// www.kywd.uscourts.gov/court-fees. If you cannot afford to pay the fee, you may file a non- prisoner application to proceed without prepayment of the fee. Once you file a Notice of Appeal, the District Court no longer has jurisdiction over your case, and all questions regarding the case should be addressed to the Clerk of the Sixth Circuit.

Interlocutory appeals In some limited circumstances, you may appeal a non-final decision while your case is ongoing. These types of appeals are called interlocutory appeals. The limited circumstances in which you may seek an interlocutory appeal are set forth in 28 U.S.C. § 1292. If you choose to file an interlocutory appeal, your Notice of Appeal is filed in the district court where the decision you are appealing was filed.

Rev. 4/1/2025 14