A Step-by-step Guide To Filing A Civil Lawsuit In The United States .

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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF TEXASA STEP-BY-STEP GUIDE TO FILING A CIVIL LAWSUITIN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF TEXASRev. Ed. October 26, 2017

ACKNOWLEDGMENTThis Guide was prepared and revised in cooperation with theSan Antonio Chapter of the Federal Bar Associationand the Federal Courts Committee of theSan Antonio Bar AssociationRev. Ed. October 26, 2017

TABLE OF CONTENTSINTRODUCTION . 5BEGINNING A LAWSUIT . 6Jurisdiction of the United States District Court . 6Where to File . 7Basics 7Time Involved in Litigation . 8STEP 1 - GETTING STARTED . 8Filing a Complaint . 9Filing a Complaint Alleging Employment Discrimination. 11Filing Fees . 11Filing a Request that the Court Waive Payment of Filing Fees . 11Filing a Motion to Ask the Court to Appoint an Attorney to Represent You . 12Service of Process (notifying each defendant that a complaint has been filed) . 12The Summons . 12Instructions for Completing the Summons Form . 13Service of Summons . 14Answer to Complaint by Defendant. 15A Defendant's Removal of a Pro Se Plaintiff's State Case . 15Motions filed Challenging the Complaint . 16Motions to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6). 17STEP 2 - PRETRIAL/DISCOVERY . 18Scheduling Order. 18Filing Motions . 20Discovery . 21Mediation/Alternate Dispute Resolution . 22Ending the Case Without a Trial . 22STEP 3 - TRIAL/JUDGMENT. 23STEP 4 - POST-TRIAL . 23CIVIL CASE FLOW CHART. 25FORMS. 26Attachment 1 - Civil Complaint . 26Attachment 2 - EEOC Complaint Form . 27Attachment 3 - EEOC Checklist . 31Attachment 4 - Motion to Proceed in Forma Pauperis . 32Rev. Ed. October 26, 2017

Attachment 5 - Application to Proceed In Forma Pauperis and Financial Affidavit inSupport (Austin Division ONLY) . 34Attachment 6 - Motion for Appointment of Counsel . 40Attachment 7 - Civil Cover Sheet & Instructions. 43Attachment 8 - Summons Form . 45Attachment 9 - U.S. Marshal Form 285 (USM-285) . 47Attachment 10 - Motion. 48Attachment 11 - Certificate of Service . 49Attachment 12 - Privacy Policy and Public Access to Electronic Files . 50GLOSSARY . 52LIST OF AVAILABLE FORMS / EXAMPLE DOCUMENTS. 57NOTICEThis Guide is not intended to, and does not, confer any rights. Rather, the Guide isintended to offer some procedural information, collected in one place, for the possible assistance tothe non-prisoner 1pro se plaintiff who seeks to initiate a civil lawsuit in this Court. Once thelawsuit is filed, the civil case is assigned to a judge or judges who will render Orders togovern the disposition of the case. The Court’s Orders may supercede any matteraddressed in this Guide. Further, the progression of a civil lawsuit is controlled by theFederal Rules of Civil Procedure and the Local Civil Rules of this Court, copies of whichmay be found at the Court’s website located at https://www.txwd.uscourts.gov/1Incarcerated individuals who file civil lawsuits in this Court are governed by the Prison LitigationReform Act of 1995 (“PLRA”), Pub. L. 104-134, 110 Stat. 1321 (1996), which imposes separaterequirements and responsibilities. Prison and jail facilities in the State of Texas have informationavailable on the PLRA and should be able to provide a copy of the proper form complaint (thereare several) to be used to file a complaint in a particular type of case or such forms are availablefrom the Clerk’s Office of this Court.Rev. Ed. October 26, 2017

INTRODUCTIONIn federal court, civil lawsuits are commenced by filing civil complaints. Although anindividual may file a complaint without the assistance of an attorney, appearing “pro se” (by or foryourself), it is strongly recommended that you secure the assistance of an attorney in thepreparation, filing and prosecution of your complaint.2 Experience has shown that an attorneycan make the complex process of federal litigation much simpler. Organizations such as the StateBar of Texas Lawyer Referral Program (Telephone: 1-800-252-9690) may be able to assist you inobtaining an attorney at little cost. Although some courts show some leniency to pro se parties inapplying the applicable rules governing lawsuits, you should be aware that failure to comply witha court’s order or applicable rules may result in dismissal of all or part of your case for that reasoneven if the court has not yet considered the merits of your case and claims.Lawsuits in federal court go through a number of steps from the time they are filed untilthey are ultimately resolved by a judge, a jury, or through alternative dispute resolution (such assettlement negotiations). This Guide summarizes some of the procedures concerning: how andwhere to file necessary legal papers; the exchange of information between opposing parties; trialpreparation; and certain other legal procedures which you and your opponent may need to usebefore your case is resolved.When applicable, this Guide may cite actual rules governingprocedure in any United States District Court (primarily, the Federal Rules of Civil Procedure) as2Individuals who are named as defendants in a lawsuit also may proceed pro se (corporationsgenerally may not proceed pro se, either as a plaintiff or defendant). This Guide focuses on anindividual who is proceeding pro se and on questions that may arise at or about the time the civilaction is first filed.5Rev. Ed. October 26, 2017

well as procedural rules that apply only in this District (primarily, the Local Rules for the UnitedStates District Court for the Western District of Texas).The Guide was developed to help pro se litigants understand some of the proceduralrequirements associated with filing a civil suit in United States District Court for the WesternDistrict of Texas. The Guide is not an all-inclusive set of instructions designed to answer everyquestion, address every issue, guarantee success in any particular lawsuit, or substitute for legalrepresentation by an attorney. Because any Guide cannot provide all information that may berelevant to any one specific case, pro se litigants must understand they cannot rely solely upon theinformation provided in the Guide to answer all their questions as they may file and prosecute acase. Furthermore, because the Guide is provided by the Clerk’s Office, rather than the court, prose litigants must understand that the information contained in this Guide is not legal advice and canalways be superceded by any specific order or instruction of a judge in a specific case. Clerk’sOffice personnel are prohibited from providing legal advice of any kind. Therefore, pleaseunderstand that members of the Clerk’s Office staff may not help you evaluate your complaint orgive advice on possible methods of prosecuting your civil action.BEGINNING A LAWSUITJurisdiction of the United States District CourtFor a United States District Court to hear a case, the court must have jurisdiction over theparticular claims as well as the parties to the action. Original federal court jurisdiction is typicallybased on either: (1) presenting a “federal question” for decision by the court; or (2) “diversity ofcitizenship” among/between all parties. A federal question case is generally one that alleges the6Rev. Ed. October 26, 2017

violation of a federal law, such as a statute or federal constitutional provision. A diversity case isgenerally based on the parties residing in different states or countries.Where to FileThe United States District Court for the Western District of Texas is comprised of sevendivisions located in the following cities: Austin, Del Rio, El Paso, Midland, Pecos, San Antonio,and Waco. Generally, a case is filed in the division where the claim arose or where the defendantresides. In cases based on diversity of citizenship (for example, when plaintiff and defendant areresidents of different states), suit may be brought in the division where the plaintiff resides.BasicsThe complaint and other pleadings related to your suit must be delivered or mailed to theClerk’s Office in the appropriate division at the addresses available from the Clerk’s Office. Incertain circumstances, an individual who is not an attorney can receive permission to filedocuments electronically, as provided in the Administrative Policies and Procedures for ElectronicFiling in Civil and Criminal Cases, (“Electronic Filing Procedures”) posted on the court’s web site(see www.txwd.uscourts.gov) and available through the Clerk’s Office.A case-initiatingdocument, such as a complaint, may not be e-filed and must be filed in the traditional manner, bydelivering or mailing an original and one copy of the complaint, and tendering either the requiredfee or filing an original and one copy of a motion for leave to proceed in forma pauperis. Otherthan the complaint (and, if you have permission to e-file, other documents that the ElectronicFiling Procedures require to be filed in the traditional manner), you must tender to the Clerk’sOffice an original and one copy of any document you wish to file with the Court. Further, asdiscussed below, after your complaint has been served on opposing counsel, you also generally7Rev. Ed. October 26, 2017

must serve an additional copy of any document filed on each opposing party, by mailing the copyto the attorney of record for that party (or by mailing the copy to the party directly if no attorneyhas entered an appearance). The requirements for service of the complaint are discussed furtherbelow.Any document you prepare for filing with the Court must be typewritten or neatly andlegibly hand-printed/written. Type, print, or write on only one side of the paper. If the documentis typed, it must be double-spaced and with a minimum font size of “12.”Time Involved in LitigationPro se litigants should be aware of both the complexity of federal court litigation and thetime often necessary to resolve an individual case. In addition to thousands of civil actions, thejudges in the Western District of Texas are charged with resolving thousands of criminal cases.Among other reasons, because of the high importance of resolving matters involving personalliberty interests of those criminally accused, the law grants criminal cases a priority over civilcases in terms of the timing of the case’s resolution. Just as your case is important to you, theremaining hundreds of individual cases on any federal judge’s docket are important to thoseparties. Although inherent delays in litigation can be frustrating for all involved, be assured thatthoughtful consideration of each individual case is given by the judge and such considerationnecessarily often requires considerable lengths of time to resolve an individual case.STEP 1 - GETTING STARTEDA federal civil case begins when a plaintiff files a complaint with the Clerk of Court thatstates a claim(s) against a person or entity that is, a defendant, whom the filer asserts hascommitted an actionable, wrongful act. The lawsuit must be based upon a legal duty owed by thedefendant to a plaintiff personally. A lawsuit must not be based upon any improper purpose, such8Rev. Ed. October 26, 2017

as only to harass an individual or entity. If a lawsuit is filed for an improper purpose, in additionto dismissing the case, a court may impose penalties or sanctions, including awarding of anopposing party’s legal fees. The filing of a lawsuit is a serious matter that should only beundertaken after careful consideration.First, there are two terms to remember and understand:1.The person who files the complaint is known as the “plaintiff.”2.The person who is being sued is known as the “defendant.”You, the plaintiff, are representing yourself without benefit of an attorney. For this reasonyou are known as a pro se litigant. Pro se is a Latin term meaning “for himself” or “for herself.”After you have read this Guide, any questions you may have should be directed to theIntake Deputies in the United States District Clerk’s Office. Please keep in mind that anydocument you file with the Court must comply with the “Privacy Policy and Public Access toElectronic Files.” (See Attachment 12).Filing a ComplaintThe first pleading written and filed in a lawsuit is called a “Complaint.” (See Attachment1). The text of the complaint should be double-spaced, whether typed or hand-printed and, iftyped, should use a minimum font size of 12. The Clerk’s Office has form complaints available toaddress certain types of cases.The most common of these forms are discussed below.Complaints often include the following six main parts:1.The CAPTION. The caption of the complaint appears at the top of the first page ofthe complaint. It states the court in which the case is filed and the names of theparties. Every document you file with the court should have a caption at the top of9Rev. Ed. October 26, 2017

the first page. The complaint and all other pleadings filed with the court should beon 8 ½ inch by 11 inch paper. You should list the names of all the defendants youwish to sue in the caption. Do not use phrases like “et al.” or “etc.” in your casecaption to avoid listing all plaintiffs or all defendants. You will describe thedefendants more fully in another part of your complaint. It is your obligation, aspro se plaintiff, to identify the people who allegedly injured you.2.The NAME and ADDRESS of the plaintiff and the defendant.These aresometimes listed in the first and second paragraphs respectively. If there is morethan one defendant, list each defendant’s name and address in separate additionalparagraphs.3.A JURISDICTIONAL PLEA. You should state why you believe the court hasjurisdiction over your case. A jurisdictional plea is a statement of the power andauthority of the court to hear your case. If the court does not have jurisdiction, itcannot decide your case. See 28 U.S.C. § 1330 et seq.4.The ALLEGATIONS are the claims that you are making against the defendant.Each allegation should be set forth in a separate, short, clearly written paragraph.This should be a short and plain statement of the claim showing why you, the pro seplaintiff, are entitled to the relief you request. Generally, each claim should bestated in a separately numbered paragraph, with each paragraph limited, so far aspossible, to a statement of a single set of factual circumstances. In short, clear,numbered paragraphs, describe the acts or omissions of each defendant(s) (and10Rev. Ed. October 26, 2017

separately for each defendant) that you believe violated your rights or caused youinjury, identifying your right and describing your injury.5.The RELIEF you are seeking from the court. This paragraph describes what youwant the court to do in response to your complaint. This information is usuallywritten in the last paragraph of the complaint.Usually each paragraph of acomplaint is numbered, except for the paragraph that asks the court for relief. Thislast paragraph can bear the caption: “Relief Requested.”6.SIGNATURE LINE. You must sign and date the original complaint. Also,include your address and telephone number below your signature and the date yousigned.Filing a Complaint Alleging Employment DiscriminationIf you are filing an employment discrimination suit pursuant to Title VII of the Civil RightsAct of 1964, 42 U.S.C. §§ 2000 et seq., the Americans with Disabilities Act (“ADA”), the AgeDiscrimination in Employment Act (“ADEA”), the Equal Pay Act, or the Rehabilitation Act,please use the complaint form provided as Attachment 2 and review EEOC Checklist included asAttachment 3.Filing FeesYour next step usually is to file the complaint with the court. You will be required tocomplete and submit a CIVIL COVER SHEET (see Attachment 7) along with your complaint.You will also be required to pay a FILING FEE. See 28 U.S.C. § 1914.Please contact theIntake Deputy Clerk in the United States District Clerk’s Office to obtain current filing feeinformation. Fee information is also available on the internet website for the United States11Rev. Ed. October 26, 2017

District Court, Western District of Texas at www.txwd.uscourts.gov. All checks and moneyorders should be made payable to: “Clerk, U.S. District Court.”Filing a Request that the Court Waive Payment of Filing FeesIf you cannot afford to pay the filing fee, you may qualify to have the filing fee waived byfilling out a motion to proceed in forma pauperis. (See Attachment 4). If you wish to ask thecourt for permission to have the filing fee waived, you will file an original and one copy of a swornmotion to proceed in forma pauperis at the same time you tender for filing the original and onecopy of your original complaint, and the Civil Cover Sheet.The Complaint, Civil Cover Sheet, and motion to proceed in forma pauperis will beconsidered by the court. See 28 U.S.C. § 1915. If your motion to proceed in forma pauperis isgranted by the court, part or the entire filing fee can be waived. If your motion to proceed informa pauperis is denied, you must pay the filing fee to proceed with your case.Filing a Motion to Ask the Court to Appoint an Attorney to Represent YouIf you cannot afford an attorney, you may file a written motion asking the court to appointan attorney for you. This written motion is called a “Motion for Appointment of Counsel.” (SeeAttachment 6). This motion will provide the court information about your financial status, yourattempts to find a lawyer, and any other information you would like the court to consider indetermining whether a lawyer should be appointed for you.Unlike most criminal cases andcriminal defendants, Congress has not appropriated funds to pay for attorneys to represent civillitigants. In the civil area, the court is usually not required to appoint an attorney to represent apro se civil litigant. But, the court may ask an attorney who has indicated a willingness to acceptsuch appointments to represent you. These appointments are pro bono appointments. That is,12Rev. Ed. October 26, 2017

unless you prevail on a claim, you and/or your attorney will not be able to recover costs. Further,unless there is a statute authorizing an award of attorney’s fees, the court will not be able toconsider your appointed lawyer’s request to be awarded any amount of attorney’s fees.Service of Process (notifying each defendant that a complaint has been filed)The SummonsEach defendant must be informed that he/she is being sued and must receive a copy of thecomplaint. A Summons is the document used to notify a defendant that he/she has been sued.You must prepare a summons for each defendant and submit the summons forms and a copy ofyour complaint to the Clerk of Court. A summons is an official court document, signed by theClerk or Deputy Clerk, directing a defendant to respond to a complaint. Summons forms areavailable in the United States District Clerk’s Office or on the internet site atwww.txwd.uscourts.gov. (See Attachment 8).Instructions for Completing the Summons FormWrite your name above the “v.” as plaintiff;Write the name of each person or entity you are suing as defendants below the “v.”Write the name and address of one defendant after the word “To.” You mustprepare a separate summons for each defendant.Because you are representing yourself, in the space after “plaintiff’s attorney” fillin your own name and address. Cross out “Plaintiff’s Attorney” and write “ProSe” after your name.Put the proper number in the space before “days after service of this summons . . . .”Defendants generally have twenty-one (21) calendar days to file an answer (or13Rev. Ed. October 26, 2017

other responsive pleading) after they are served with the complaint. If the UnitedStates or any of its agencies or employees is a defendant, the United States has sixty(60) calendar days to file an answer (or other responsive pleading). Defendants incases seeking review of decisions under the Social Security Act have ninety (90)calendar days to answer to the complaint.When you have completely filled out the summons form, provide it to the Clerk’s Office;the Clerk will sign and seal each summons form and return it to you so you can attach one copy ofyour complaint to each summons so that they each may be served on each defendant. Onecompleted summons form and one copy of your complaint must be provided to the Clerk’s Officefor each defendant required to be served.Service of SummonsService of summons, also called service of process, is the actual delivery of the summonsand complaint to each defendant in your case. Service of process in federal court is governed byRule 4 of the Federal Rules of Civil Procedure. You are responsible for arranging for the serviceof the summons and a copy of the complaint on each defendant, and for ensuring that proof of thatservice is returned to the Clerk’s Office for filing.The summons and complaint must be servedwithin 90 days of filing the complaint or the case may be dismissed for failure to timely prosecute.Federal Rule of Civil Procedure 4 states that process may be served upon a defendant whois an individual within a federal judicial district by having a person who is not a party and who isat least 18 years of age deliver a copy of the summons and complaint to each such individualpersonally or by leaving a copy of the summons and complaint at the individual’s dwelling orusual place of abode with some person of suitable age and discretion then residing there. See14Rev. Ed. October 26, 2017

Federal Rule of Civil Procedure 4(c) & (e).Under this method of service, the server fills out theback of the original summons and returns it to the court. You should read Rule 4 of the FederalRules of Civil Procedure in its entirety to determine the appropriate method of serving eachdefendant in your case.If you have filed a motion to proceed in forma pauperis, and the motion was granted by thecourt, the court may order the United States Marshals Service to serve each defendant with thesummons and copy of your complaint, without cost to you. For each defendant named in thecomplaint, you are responsible for completing (1) a summons form (providing the full name andcomplete address for each defendant) and (2) a USM-285 form, captioned “Process Receipt andReturn,” which may be mailed to you with your copy of the court order granting you leave toproceed in forma pauperis. (See Attachment 9.) You are responsible for making a copy of yourcomplaint and summons form for each defendant. You will give the completed summons formfor each defendant named in your complaint, as well as a copy of your complaint for eachdefendant, to a Civil Intake Deputy Clerk in the Clerk’s Office. The Clerk will forward thesedocuments to the Marshals Service.Answer to Complaint by DefendantThe answer is a defendant’s written response to the plaintiff’s complaint in which thedefendant sets forth his response and defense to all or part of the allegations in the complaint. Aswith the complaint and all other pleadings, a defendant must file the answer with the Clerk ofCourt and serve a copy of the answer on each plaintiff. Failure to answer or otherwise defend in atimely fashion can be a ground for judgment by default against the defendant. (See Federal Ruleof Civil Procedure 55).15Rev. Ed. October 26, 2017

A Defendant's Removal of a Pro Se Plaintiff's State CaseIf all defendants in a State action agree and there is a basis for federal subject matterjurisdiction over one of plaintiff's claims, then defendant(s) may remove a pro se plaintiff's Statepetition for decision in this Court.Defendant(s) must file a petition to remove the case to thisCourt within certain time limits and in compliance with other federal procedural requirements.See Title 28, United States Code, §§ 1441 - 1453.If you are a pro se plaintiff and defendants have removed your State case to this Court, youmay move for remand of the State case within certain time limits and in compliance with otherfederal procedural requirements. See Title 28, United States Code, § 1447.Once a State case is removed to this Court, all other rules and procedures of this Courtapply regarding the pretrial management and ultimate resolution of the case.Motions filed Challenging the ComplaintAlthough most defenses filed by a defendant to a complaint are stated in the answer, adefendant has the option of asserting certain defenses before filing the answer. A motion is anapplication to the court asking that the court take some particular action in the case. A motion todismiss the complaint is a motion a defendant may file to challenge the complaint, on certainspecified grounds, even before the defendant files an answer. Motions to dismiss the complaintmay contain the following arguments: (1) the court lacks jurisdiction over the subject matter, thatis, the court lacks the power to decide the subject matter of the case; (2) the court lacks jurisdictionover the person, that is, the court lacks the power to compel a defendant to appear; (3) venue is notproper, that is, plaintiff’s case should not be handled in the District in which it was filed; (4)service of process was not sufficient; (5) the complaint fails to state a claim which the law will16Rev. Ed. October 26, 2017

recognize as enforceable; and/or (6) plaintiff has failed to join a needed party. If such a motion isfiled by a defendant in your case, you will have 14 days after the motion is filed in which to fileyour response. It is very important to respond to a motion to dismiss, as any other motion;otherwise, the relief requested in the motion may be granted as unopposed or your case may bedismissed even though you have not presented an argument to the court.Because one type of motion is often filed by a defendant, whether before or after thatdefendant has filed an answer, the Guide includes a brief discussion of motions to dismiss forfailure to state a claim upon which relief may be granted. You may wish to consider the generalprocedures that apply to motions to dismiss when writing your complaint so that you haveprovided sufficient information about your claim in the complaint. As with all other parts of theGuide, this is not a discussion of substantive law to determine the outcome of any case, but adiscussion of the general procedures and standards that may apply to the consideration of anymotion to dismiss the pro se complaint you may file.Motions to Dismiss Pursuant to FED. R. CIV. P. 12(b)(6)Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must state aclaim upon which relief can be granted or the complaint may be dismissed with prejudice as amatter of law. Rule 12(b)(6) motions to dismiss may be filed before or after defendant has filedan answer.When considering a motion to dismiss for failure to state a claim, the “court accepts ‘allwel

A STEP-BY-STEP GUIDE TO FILING A CIVIL LAWSUIT . IN THE UNITED STATES DISTRICT COURT . FOR THE WESTERN DISTRICT OF TEXAS . Rev. Ed. October 26, 2017 ACKNOWLEDGMENT . This Guide was prepared and revised in cooperation with the . San Antonio Chapter of the Federal Bar Association .

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