Federal Jurisdiction - Learning about the Case Flashcards
What documents make up Process and How many days does P have to serve process after filing the case?
Process = (1) a summon and (2) a complaint
Must be served within 120 days of filing case or the case is dismissed without prejudice. (not dismissed if P can show good cause for delay)
Who can serve process in federal court?
Any NONparty who is at least 18. Does not need to be court appointed.
How can processed be served?
(1) Personal Service
(2) Substituted Service: Two requirements
* Served at defendant’s usual home (common sense - can be summer house)
* Serve someone of suitable age and discretion who reside there.
(3) Service on D’s Agent.
(4) Serve by any means permitted under state law where federal court sits or service is made
(5) Waiver by mail: Send two copies of waiver form with copy of complaint. If D executes and mails waiver within to P within 30 days. D waives formal service. (D then gets 120 days to respond to complaint).
What does a lawyer certify two when they sign and present documets:
To the best of her knowledge and belief, after REASONABLE INQUIRY:
(1) The paper is not for an improper purpose
(2) The legal contentions are warranted by law, and
(3) The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation).
Can a party move for sanction immediately if another party violates Rule 11?
No, You serve the motions on the other party, but do not fix. They have 21 day safe harbor to fix the problem and avoid sanctions.
Remember court can file a Rule 11 problem on its own.
Complain Requirements and Standard for Pleading
Complaint Requirements:
(a) Statement of grounds for SMJ
(b) Short and plaint statement of the claim, showing entitled to relief
(c) Demand for Relief Sough
Must plead facts supporting a PLAUSIBLE claim
Need to plead more particularity for fraud, mistake, & special damages.
Defendant’s Option to Respond to a Compaint
(1) By Motion
(2) By Answer
Either must be done within 21 days of service of process unless service waived then 60 days from when ) mailed the waiver form.
What are Motions?
List the Issues of Form
Motions are requests for a court order.
Two Issues of Form:
(1) Motion for a more definite statement - pleading so vague D can’t frame a response.
(2) Motion to Strike - aimed at immaterial things.
List the 12(b) Defenses and Which are waivable?
Rule 12(b) defenses: Can be raised on motion or answer
(1) Lack of SMJ
(2) Lack of PJ
(3) Improper venue
(4) Insufficiency of process (problem with the papers)
(5) Insufficient service of process
(6) Failure to state a claim
(7) Failure to join indispensable party.
Motion for PJ, Improper Venue, and Insufficiency of Process and Insufficient service of process are WAIVABLE.
Meaning they must be raised in the first response or they are gone.
What is a pleading and what must it contain?
An answer is a pleading.
(A) It must respond to the allegation of a complaint by:
(1) Admitting the allegation
(2) Denying the allegation or
(3) State that you lack insufficient information to admit or deny. [This acts as a denial]
Failure to deny can be an admission on any matter except damages.
(B) Raise Affirmative Defense (i.e. SoL, SoF, Res Judicate) [Must raise these defenses or risk waiving them]
What is a counter claim?
List the two types of counter claims
A claim against an opposing party. It is part of D’s Answer.
Compulsory: Arises from the same t/o as P’s claim. Unless already filed in another case, MUST FILE IN PENDING CASE OR ITS WAIVED.
Permissive: does not arise from the same t/o as P’s claim. Can raise now or assert in a separate case.
**If procedurally OK, then assess SMJ.
What is a crossclaim?
Claim against a co-party.
It must arise from the same t/o as the underlying action.
THESE ARE NOT COMPULSORY.
Must assess for SMJ.
Who has a right to amend a pleading ad under what conditions?
- Plaintiff may amend once and must be done within 21 days after D serves first rule 12 response.
- D may amend once within 21 days of serving his answer.
If there is no right to amend, you may “seek leave of court”. Court may grant if justice so requires by looking at:
(1) Delay
(2) Prejudice
(3) Futility of Amendment.
Amendment for Variance
If evidence is introduced at trial and admitted which creates another claim not stated in the leading, the court may allow the party to amend the pleading to state the claim.
Amendment after SoL has Run
General Rule: Amended pleadings “relate back” if they are concern the same t/0 as the original pleading. So it can avoid a SoL problem. Treat he amended pleading as though it was filed when original was filed.
