CIV PRO fall statutes

Question 1

Rule 8(a)(2)

Answer 1

Rule 8(a)(2): “A pleading that states a claim for relief must contain a short and plain statement of the claim showing that the pleader is entitled to relief”

Question 2

Claim:

Answer 2

The “heartbeat of a case (the basic unit of litigation in federal courts

“a set of operative facts giving rise to one or more rights to relief”

Generates litigation, controls scope of discovery, provides focal point for sum. Judgment, and determines the relevance of evidence to be presented at trial, if there is one.

Question 3

Cause of Action:

Answer 3

a set of operative facts that give rise to ONE right of relief; DO NOT USE IN FED COURT; used in state courts

Question 4

Rule 3

Answer 4

civil action is commenced by filing a complaint by the court

Question 5

Rule 7(a)

Answer 5

Title III Pleadings and Motions;

Rule 7(a): Pleadings Allowed; Form of Motions and Other Papers

o A complaint;
o An answer to a complaint;
o An answer to a counterclaim designated as a counterclaim
o An answer to a crossclaim
o A third-party complaint
o An answer to a third-party complaint
o And, if the court orders, a reply to an answer

Question 6

Code pleading

Answer 6

“Fact pleading system”; used by states; “field code

Contemporary fact pleading standards— State supreme courts assess the sufficiency of a complaint by: (Doe v. Epstein)

1. “allegations and belief” –
   an allegation made on information and belief is one for which the pleader lacks personal knowledge
   o 3rd party info or lacks means of obtaining information because other party has it
   o these are permitted but must premise them on something more than conjecture

o 2. “Ultimate Facts” –
facts pleading require pleader to allege the “ultimate facts” as opposed to evidentiary facts or conclusions of law
o ultimate facts are stated at a level of detail sufficient to provide notice of cause of action’s factual basis
o ultimate facts are enough facts to support claim, not prove it
o evidentiary facts are additional facts used to prove ultimate facts

Question 7

Rule 8a

Answer 7

Rule 8 – General rules of pleading

8a. Claim for Relief:
A pleading that states a claim for relief must contain:
• 8a1. (SMJ) Jurisdiction— A short and plain statement of the grounds for the court’s jurisdiction (this is referencing only SMJ), unless the court already has jurisdiction and the claim needs no new jurisdictional support;
• 8a2. Claim— A short and plain statement of the claim showing that the pleader is entitled to relief; and
• 8a3. Desired Outcome—A demand for the relief sought, which may include relief in the alternative or different types of relief (note specific relief is not part of claim)

Question 8

Rule 8b

Answer 8

8b: Defenses; Admissions and Denials
8b1. In General: In responding to a pleading, a party must:

o 8b1A. State in short and plain terms its defenses to each claim asserted against it;

o AND

o 8b1B. Admit or deny the allegations asserted against by an opposing party

o 8b6. Effect of Failing to Deny(“Averments”):
“An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied.” If a responsive pleading is not required, an allegation is considered denied or avoided.
o *Averments affirmation or allegation

Rule 8b’s Roadmap for Answering a Complaint— 3 alternatives in an answer to allegations of a complaint:

o 1. Admit allegations– sets aside those allegations as no longer controversial; plaintiff no longer has to prove those facts

o 2. Deny Allegations– makes allegation controversial
• General denial—denies all allegations including jurisdiction
• Specific denial—means you deny specific allegation
• Failing to Deny—allegations failed to deny will be taken as true

o 3. To state a disclaimer (if it can be made in the objective and subjective good faith demanded by Rule 11)

Question 9

Rule 8c

Answer 9

8c. Affirmative Defenses
8c1. In General: in responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

o see p. 72 for full list but includes—
o contributory negligence, duress, estoppel, failure of consideration, fraud, illegality, payment, statute of frauds, statute of limitations, and waiver …

Question 10

Rule 8d

Answer 10

8d. Pleading to be concise and direct; alternative statements; inconsistency.

• 8d1. in general—each allegation must be simple, concise, and direct. No technical form is required.
• 8d2. Alternative statements of a claim or defense—a party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient
• 8d3. Inconsistent claims or defenses—a party may state as many separate claims or defenses as it has, regardless of consistency

Question 11

Rule 8e

Answer 11

Pleadings must be construed so as to do justice

Question 12

Rule 9b

Answer 12

Pleading Special Matters

Fraud or Mistake; Conditions of the mind

• In alleging fraud or mistake party must state with particularity the circumstances constituting fraud or mistake.
• Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

Question 13

Iqbal / Twombly

Answer 13

Claim must be “plausible”

Legal conclusions are not entitled to the assumption of truth

“judicial experience and common sense”

o To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face”
o A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement” but it asks for more than a sheer possibility that a defendant has acted unlawfully.

o Thus, question is not whether the factual matter asserted by the plaintiff is reasonably “suggestive” of a claim for relief.
o Plausibility lies somewhere between possible and probable and its satisfaction requires careful consideration of facts alleged and reasonable inferences that can be drawn from those facts

Question 14

Twombly/Iqbal Analysis (applying the plausibility standard)

Answer 14

1. Identify the elements of the claim
2. Set aside conclusory allegations (NOT entitled to assumption of truth)
3. Assess remaining allegations (which are entitled to the assumption of truth) and see whether they give rise to plausible claim of relief
   • In considering factual allegations, need a plus factor to show the allegations are more than just possible and are actually plausible and this is done through the court’s experience and common sense

Question 15

Rule 12(a)

Answer 15

12a Time to Serve a Responsive Pleading

12a1: In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

o 12a1A: A defendant must serve an answer:

o 12a1Ai. within 21 days after being served with the summons and complaint

• OR

o 12a1Aii: if it has timely waived service under Rule 4d, within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the U.S.

Question 16

Rule 12b’s

Answer 16

12b How to Present Defenses

12b permits a defendant to raise certain specified defenses by motion, prior to filing an answer

• Thus, under rule 12b, the defemdant may assert any of the following defenses by motion:

o 12b1—lack of subject-matter jurisdiction;
o 12b2—lack of personal jurisdiction
o 12b3—improper venue
o 12b4—insufficient process
o 12b5—insufficient service of process
o 12b6—Motion to Dismiss for failure to state a claim upon which relief can be granted
o 12b7—failure to join a party under rule 19

12b6 Note:
– can be filed through trial (where 8c must be filed by the answer portion, few exceptions—burden on plaintiff stuff)

–when file 12b6 it is filed instead of an answer

Question 17

Traditional bases of Personal Jx

Answer 17

1. Physical Presence and transient (TAG) Jx
2. Voluntary Appearance (general & contractual)
3. Consent to Service on an Agent: Express and Implied
4. Domicile
5. In Rem / Quasi In Rem (subject to minimum contacts test)

Question 18

“At home” for corporation?

Answer 18

1. Principal place of business

2. Place of incorporation

Question 19

Rule 4k

Answer 19

Rule 4—Summons

4k1: In general serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

o 4k1A:
who is subject to the jx of a court of gen. jx in the state where the district court is located

o 4k1C:
when authorized by a federal statute (ex: Fed statute; basically when a long-arm statute may be used in fed statute)

4k2:
allows fed courts to obtain PJ through worldwide service of process on claims brought to vindicate federal rights, if the plaintiff can show that the defendant is not subject to jx under the laws of any state and can show that the defendant is not subject to jx under laws of any state and the exercise of jx is constitutional

4k2 – use only when the plaintiff’s claim is a federal claim (not breach of contract, torts, or property)

1. Plaintiff’s claim must be federal claim (claim must be fed. In nature)
2. Defendants not subject to PJ in any state of the U.S.
3. Minimum contacts test under 5th amendment to U.S. constitution

in context of shoe:

1. Long arm statute: FRCP 4k2
2. Meaningful contacts w/ the U.S. as a whole
3. Reasonableness

Question 20

Rule 60(b)4

Answer 20

In fed system a defaulting defendant can make motion under rule 60(b)4 asking trial court to set aside judgment on the ground that it is “void”

RULE 60—relief from a judgment or order

60b: grounds for relief from final judgment, order, or proceeding
60b4: the judgment Is void (in this case it would be motion to set aside judgment for lack of jurisdiction filed )

Question 21

§1331

Answer 21

Federal Question Statute (“Arising Under”):

•“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U.S.

Question 22

§1332

Answer 22

Diversity Statute:

deal with suits btwn citizens of a state or citizens or subjects of a foreign country

NOTE: Requires–

1. AIC over $75,000
2. Complete diversity btween plaintiff and defendants

“Citizenship”

individuals –> domicile
Corporations–> can be multiple and is place of incorporation (where created) and primary place of business (nerve center test)

Question 23

AIC

Answer 23

1. plaintiff identifies AIC; accepted as true if made in good faith (meaning subjec. and objec. components)
2. Must exceed $75,000, exclusive of interests and costs (does not include attorneys fees unless statute or contract says so)

Exception:
–plaintiff alleges in good faith matter in controversy exceeds $75,000 but there is a legal certainty plaintiff cannot recover this much
(coventry)

Question 24

§1367

Answer 24

Supplemental Jx (Replaced “pendant jx” & “ancillary jx”)

§1367(a) states:
–except as provided in (b) and (c) [below] or as expressly provided otherwise by Fed. Statute, in any civil action over which the district courts have original jx, they will also have supplemental jx over all other claims that are so related to claims in the action within such original jx that they form part of the same case or controversy under Art. III, including claims that involve the joinder or intervention of additional parties.

§1367(b):
–bars SJ if there are certain joinder settings and original jx is founded solely in §1332

–bars sj, in certain circumstances, when a district court’s jx is “founded solely on §1332 (diversity statute)

– not an issue for §1331 cases (federal question statute)

–Attempted to codify holding in Kroger so as to disallow supplemental (formerly pendent-party) jx in diversity cases over claims by plaintiffs that would destroy or evade complete diversity

§1367(c):
– situations where a court may use discretion to decline jx

– sets out four grounds on which a district court may decline to exercise SJ

1. Claim raises novel or complex issue of State law
2. Claim substantially predominates over the claim or claims over which the district court has original jx
3. District court has dismissed all claims over which it has original jx, OR
4. In exceptional circumstances, there are other compelling reasons for declining jx

§1367(d):
– Seeks to ease hardship formerly placed on parties like Kroger whose would-be pendent or ancillary claims were dismissed by a fed court after applicable statute of limitations might have run

– Now, if court refuses to exercise SJ, SOL is tolled for the period during which the fed. Suit was pending and for at least 30 days after dismissal allowing a party to refile in state court

– §d only applies if the state-law claim fell within the courts §1367(a) SJ, otherwise dismissal of the supplemental claims will not qualify for the §1367(d) tolling provision
(Ex: court dismissed plaintiff’s fed. Constitutional and statutory claims and, there being no diversity btwn parties, it then declined SJ over several accompanying state-law claims—noting that tolling provision applied only to claims for which the court had SJ )

Thus, does not always save a plaintiff if SJ is refused by the court

Question 25

Pendent Jx

Answer 25

Pendent Jurisdiction: -- Permitted federal courts to take jurisdiction over rights of action asserted by the original plaintiff for which there was no independent basis of SMJ

Question 26

Ancillary Jx

Answer 26

• Ancillary Jurisdiction: Involved claims by a person other than the original plaintiff, when no independent basis of jurisdiction existed Ex: 1. Counterclaims -- claims by defendant against plaintiff 2. Cross-claims -- claims by a defendant against a co-defendant 3. intervention -- claims by someone wishing to intervene in the suit as an additional plaintiff 4. Impleader -- Claims by a defendant against a third party who might be liable to the defendant for all or part of the plaintiff’s claim

Question 27

Removal Statutes

Answer 27

§1441 -- current general removal statute §1446 -- Procedure for removal for civil actions §1447 -- Procedure followed after case is removed

Question 28

§1441 (a)

Answer 28

§1441(a): Removability in General • Applies to both federal question AND diversity cases • Allows a defendant or defendants to remove civil action from state court to federal court if it is a case that could have been filed in federal court originally o Ex: if fed court would have had original jx over entire action if plaintiff filed there NOTES about Removal: o Removal is exclusively a privilege of defendants, NOT for plaintiffs o A case may be removed only to the federal district court embracing the place in which the state suit is pending; it CANNOT be removed to any other federal court (Ex: if plaintiff initiates in CA superior court in LA and all requirements for removal are satisfied, defendant may remove only to U.S. District Court for the Central District of California (district which embraces LA)) o Proper removal makes venue automatically proper in the court to which the case has been removed (making §1441(a) somewhat of a venue provision)

Question 29

§1441 (b)

Answer 29

§1441(b): Limits on the Removal of Diversity Cases §1441(b)(1): o The citizenship of defendants used under fictitious names shall be disregarded -- Prevents a plaintiff from rendering a case non-removable by naming Doe defendants --(unless Doe defendants are named so their identity is clear -- OR if defendants are better equipped than plaintiff to ascertain Doe’s citizenship , -- OR if they are an agent of a company… (a few fed. Courts have permitted the actual identity of a non-diverse Doe defendant to destroy diversity jurisdiction upon removal) §1441(b)(2): o bars removal in diversity cases if any “properly joined and served” defendant is a citizen of the forum state -- even if complete diversity is satisfied and the case could have been originally filed in fed. Court, it may not be removed from state court if any defendant is domiciled in the forum state -- idea is that presence of defendant from forum state reduces risk of bias against out of staters that diversity jx is designed to guard against

Question 30

§1441(c)

Answer 30

§1441(c):Removal of Fed. Q’s Joined w/ Non-removable Claims • Even if a case cannot be removed under §1441(a) as one over which the district court would have had original jx, it is possible it §1441(c) can remove it §1441(c)(1): If a civil action includes: o (A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and o (B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B). §1441 (c)(2): Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1). SO: -- Essentially removal under §1441(c) is available for cases in which fed. Claims have been joined with a claim or laims that render the case nonremovable under §1441(a) -- After removal under (c), the court must sever the nonremovable claim(s) and remand them to state court (there is no federal court discretion here) THUS: -- The only claims remaining in district court are the federal claims and only defendants on the federal claims must consent or join the notice of removal

Question 31

§1446

Answer 31

§1446: Procedure for Removal of Civil Actions: The defendant(s) must file a notice of removal in the district court or division of the district court in which the action is pending §1446(b): -- the notice must generally be filed within 30 days of receipt of the complaint §1446(c): -- addresses special concerns that arise in the context of diversity removals §1446(c)(1)— limits any time extension for the removal of a diversity case to “1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action” §1446(c)(2)—provides a method for calculating the amount in controversy -- The sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy, except that— §1446(c)(2)(A) the notice of removal may assert the amount in controversy if the initial pleading seeks— o (i) nonmonetary relief; or o (ii) a money judgment, but the State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded; and §1446(c)(2)(B) removal of the action is proper on the basis of an amount in controversy asserted under subparagraph (A) if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the amount specified in section 1332(a). §1446(d): o requires the removing party or parties to provide prompt written notice of removal to “all adverse parties” and to “file a copy of the notice with the clerk of the state court” o notice shall “effect the removal and the state court shall proceed no further unless and until case is remanded”

Question 32

§1447

Answer 32

§1447: Procedure for After Removal Generally §1447(a) and (b): --authorize the district court to take control over the removed case by asserting its authority over the parties and the records to that proceeding §1447(c): --provides that if at any time after removal but “before final judgment” the court concludes that it in fact “lacks SMJ, the case shall be remanded” §1447(d): --An order remanding a case based on either a defect in the removal procedure or for a lack of subject matter jx “is NOT reviewable on appeal or otherwise” -- §1447(d) does not, however, apply to discretionary remands (Ex: 9th circuit upheld exercise of appellate jx over a discretionary remand order made pursuant to §1367(c) (supplemental jx) the remand was not based on a defect in the removal procedure or on the absence of SMJ, but on court’s exercise of discretion) §1447(e): --if after removal, “the plaintiff seeks to join an additional defendant whose joinder would destroy SMJ, the court may deny joinder, or permit joinder and remand the action to the State court”

Question 33

Three important characteristics of §1367

Answer 33

1. Same Case or Controversy -- §1367(a) incorporates Gibb’s recognition that a fed. Court’s ability to hear claims over which there is no independent basis of jx is limited to rights of actions that are part of the same constitutional case or controversy as the jx-conferring claim. -- Thus, most courts define “same case or controversy” in terms of “common-nucleus-of-operative-fact principle” in Gibbs 2. Addition of New Parties -- The last sentence of §1367(a) expressly allows the addition of new parties, as was often true of ancillary jx and as would have occurred with pendent-party jx 3. A court may no longer infer or imply an intent to negate -- Though the statute recognizes the importance of congressional intent in deciding whether SJ is allowed, a court may no longer infer or imply an intent to negate. Instead, a court must find that Congress has “expressly provided otherwise by federal statute.” -- without opposing language, SJ must be allowed when it meets §1367 requirements