Civil Procedure

Question 1

Personal Jurisdiction

Answer 1

Rule: Personal jurisdiction is about the court’s power over the parties

i.e. Because P filed the case, the court automatically has
power over P. The big Q is PJ over Defendant. PJ involves one question: can P sue D in this state?

Question 2

Personal Jurisdiction: 2-Step Analysis

Answer 2

Test:

1. Satisfy a state statute AND
2. Satisfy the Constitution (Due Process)

Note: **On the UBE/MEE, just mention that you need a state statute and move to the constitutional analysis

Question 3

Personal Jurisdiction: 2-Step Analysis - Constitutional Analysis**

Answer 3

Rule: Does D have “such
minimum contacts with the forum so jurisdiction
does not offend traditional notions of fair play
and substantial justice”?

To determine whether this is met, we assess a set of
factors under these headings: (must go in this order)

(i) CONTACT
(ii) RELATEDNESS
(iii) FAIRNESS

Note: Can get PJ if waived or by consent

Question 4

Personal Jurisdiction: 2-Step Analysis - Constitutional Analysis: Contact

Answer 4

Rule: There must be a relevant contact between D and the forum state. There are two factors to be addressed here.

(a) Purposeful Availment**(targeting) The contact must result from purposeful availment: D’s voluntary act. This means D must reach out to the forum.
* *(1) Marketing a product in the forum; (2) using the roads in the forum; (3) establishing domicile in the forum; (4) traveling in the forum; (5) sending a tortious e-mail into the forum

Can D purposefully avail without setting foot in the
forum? - Yes, by causing an effect in the forum

(b) Foreseeability: It must be foreseeable that D can get sued in this forum

Question 5

Personal Jurisdiction: 2-Step Analysis - Constitutional Analysis: Relatedness - (Humans)

Answer 5

Rule: Between this contact and P’s claim. Once we arguably have a contact between D and the forum, ask does P’s claim arise from D’s contact with the forum i.e. Does the contact include the very thing that harmed the P

If Yes: the court might uphold PJ even if
D does not have much contact with the forum (depending on whether PJ would be fair). Where the claim arises from D’s contact with the forum, it is called SPECIFIC PERSONAL JURISDICTION

If No: Jurisdiction is OK ONLY IF the court has general PJ. If so, D can be sued there for a claim
that arose anywhere in the world.
- To have General PJ, D must be at home in the jx
- A human is always at home where they are domiciled

• Or may have PJ with”tag jurisdiction” if voluntarily present in state when served with process

Note: Can get PJ if waived or by consent

Question 6

Personal Jurisdiction: 2-Step Analysis - Constitutional Analysis: Relatedness (Corporations)

Answer 6

Rule: To be subject to PJ, a company’s activity must be so systematic and continuous that the company is “at home” in the forum.

A corporation is “at home”

(1) where incorporated
(2) where it has it’s principal place of business (PPB)

Note: Can get PJ if waived or by consent

Question 7

Personal Jurisdiction: 2-Step Analysis - Constitutional Analysis: Fairness

Answer 7

Rule: Now we assess whether jurisdiction would be fair (or reasonable) under the circumstances.
However, the fairness factors are addressed only in cases of specific PJ ONLY
- Not in general

Specific Jurisdiction: 3 Fairness Factors
(a) Burden on D and witnesses. Does due process guarantee that the suit will be in the most convenient forum for D?
- So even if it’s hard for D to travel to the forum and
to get her witnesses to the forum, the forum is constitutionally OK unless D can show that it puts her
at a severe disadvantage in the litigation

(b) State’s interest. The forum state may want to
provide a courtroom for its citizens, who are allegedly being harmed by out-of-staters
Note: Always true if P is a citizen of the forum

(c) Plaintiff’s interest. Maybe injured and wants to
sue at home

Question 8

Summary of the Constitutional Test

Answer 8

1. Contact: Purposeful Availment and
   Foreseeability
2. Relatedness: General v. Specific
3. Fairness (Specific Only): Burden/Convenience,
   State’s Interest, and Plaintiff’s Interest

Question 9

Notice/ Service of Process (Generally)

Answer 9

Rule: In addition to PJ, D is entitled to notice that she has been sued. As a constitutional matter, notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the action.”

Test: In a regular lawsuit, notice consists of two documents:

(1) a summons (formal court notice of suit and time for
response) ; and
(2) a copy of the complaint.

Together, these two documents are called Process

Question 10

Process

Answer 10

Rule: In a regular lawsuit, process is the combination of two documents, (1) a summons (formal court notice of suit and time for response), and (2) a copy of the complaint.

Once you present a summons to the clerk of court for signature and seal, it is now a government document

Question 11

Who Can Serve Process

Answer 11

Rule: Any nonparty who is at least 18 years old can serve process, and the process server does not have to be appointed by a court

Question 12

When is Process Served

Answer 12

Rule: If D is served in the US, service is to take place within 90 days after filing the complaint

Question 13

How is Process Served: Individuals

Answer 13

Rule: In the US, individuals are served process by

(1) Personal Service - Papers are given to D personally anywhere

(2) Substituted Service - Substituted Service may be given on a D (i) if it’s D’s usual abode (where he is living now)
or (ii) served someone of suitable age and discretion who resides there
- Note: Does not have to be a relative

(3) Service on D’s Agent - Process can be delivered to
D’s agent if receiving service is in scope of agency, e.g., appointment by contract
Note: No preference, can use any

(4) State Law Methods - Process can also be served by any method permitted by state law of the state (i) where the federal court sits or (ii) where service is made
ex. service of process by mail or social media

Question 14

How is Process Served: Business or Organization

Answer 14

Rule: Process can be served on a business or organization by

(1) Officer, Managing or General Agent: Deliver a
copy of the summons and of the complaint to such
a person

(2) State Law Methods: Can use methods for serving
process permitted by state law of the state (1) where the federal court sits or (2) where service is made

Question 15

How is Process Served: Minors or Incompetent Persons

Answer 15

Rule: To serve process on minors or incompetent persons, P may use any method permitted by state law, in the state where service is to be made

Question 16

How is Process Served: In a Foreign Country

Answer 16

Rule: To serve process on D in a foreign country, you may use a method allowed by international agreement
(e.g., Hague Convention).

• If there’s no such agreement on point, options:
  (1) As directed by the American court;

(2) If reasonably calculated to give notice:
• Method allowed by the foreign country’s law
• Method directed by foreign official in response
to a letter of request (letter rogatory) from the
American court
• Personal service in the foreign country (unless
prohibited by its law) or
• ***Mail sent by the clerk of the American court,
requiring signed receipt (unless prohibited by
the foreign country’s law)

Question 17

Waiver of Formal Service of Process

Answer 17

Rule: P may mail to D a notice and request to waive formal service, including a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form
(e.g., stamped envelope for sending it back to P). If D
executes and mails waiver form to P within 30 days (60
days if D is outside the U.S.), D waives formal service of
process.
Note: Can be used for individuals and entities

Note: If D waives formal service of process, D does NOT waive any defense (ex. lack of PJ)

Note: When D signs and mails the waiver form back to P, P then files it in court and it is effective then
- For timing purposes, we act as though
D was served with process on the day P filed the waiver form in court

Question 18

Waiver of Formal Service of Process: D’s Failure to Return Waiver Form

Answer 18

Rule: If D fails to return the waiver form, P then has
D served personally or by substituted service.

Note: If D did not have good cause for failing to return the waiver form, D must pay the cost of service

Question 19

Proving Service of Process

Answer 19

Rule: Unless service is waived, the process server files a report with the court detailing how service was made

Civilian Server - If the server was a civilian, the report is by affidavit (sworn statement, under oath)
- If the process server fails to file this report, the validity of service is not affected

Question 20

Geographic Reach of Service

Answer 20

Rule: Process may be served within the state in which the federal court sits, and it may be served outside that state if
state law allows

Question 21

Service Immunity

Answer 21

Rule: If D is present in State X to appear as a party, witness, or attorney in a different civil case in State X, D CANNOT be served with process for a civil case in federal court in State X, because they are immune from service of process

Question 22

Service of OTHER Documents

Answer 22

Rule: Other documents (e.g., answer, other pleadings,
motions, discovery) get served, but we don’t need
a summons or to do it so formally.
We serve these documents (1) by delivering or mailing the document to the
party’s attorney, or
(2) pro se party (a party without a lawyer)

Note: Documents can be served by email of the other party agrees

Mailbox Rule: For discovery requests sent to the other party, service is deemed complete when they are mailed, and the other party has 30 days in which to respond to the requests
- Note: Parties get an extra 3 days (from 30) if they are mailed

Question 23

Subject Matter Jurisdiction (SMJ) - Generally

Answer 23

General: SMJ is about the court’s power over the case (not over the parties).
Federal courts can only hear certain kinds
of cases. What about state courts? As a general rule,
state courts can hear any kind of case. They have “general” SMJ

Exception: (Narrow) State courts cannot hear cases by a few federal matters (i.e. patent infringement, federal securities, bankruptcy)

Note: Parties cannot consent to SMJ

Question 24

Federal Courts’ SMJ

Answer 24

Rule: Federal courts have “limited” SMJ.

(1) Diversity of Citizenship
- Alienage: Controversy is between a citizen of a U.S. state and a citizen of a foreign country

(2) Federal Question

Question 25

Diversity of Citizenship Cases

Answer 25

Rule: There are two requirements for diversity of citizenship cases:

(1) The case is either:
(a) between citizens of different U.S. states (diversity) or (b) between a citizen of a U.S. state and a citizen of a foreign country (alienage); AND

(2) The amount in controversy exceeds $75,000

Question 26

Diversity of Citizenship Cases: First Requirement - Type of Litigants

Answer 26

Rule: Under the Complete Diversity Rule, a case is no good if any P is a citizen of the same state as any D

Question 27

Citizenship of a Natural Person (Human)

Answer 27

Rule: For a human, who is a U.S. citizen, the U.S. state of citizenship is the state where the human is domiciled (only one domicile at a time)

How can one change domicile:

(1) Physical presence in the state
(2) Intent to make a location your home for the foreseeable future

For intent, courts look to all relevant factors—like taking a job, buying a house, joining civic organizations,
registering to vote, qualifying for in-state tuition

Note: Check for diversity when the case is filed

Question 28

Citizenship of a Corporations (Incorporated and Unincorporated)

Answer 28

Rule: For a corporation, its citizenship is:

(1) Every US state or country where incorporated; AND
(1) The one U.S. state or country of its PPB

If Incorporated:
PPB: (i) where managers direct, coordinate and control its activities

If Unincorporated:
The citizenship of all its Members

Question 29

Citizenship of Decedents, Minors, or Incompetents

Answer 29

Rule: In determining citizenship of Decedents, Minors, or Incompetents, such persons must sue or be sued through a representative. However, the representative’s citizenship
is irrelevant. Use the citizenship of the decedent,
minor, or incompetent.

Question 30

Second Requirement: Amount in Controversy

Answer 30

Rule: In addition to complete diversity or alienage, P’s claim
must meet amount in controversy and exceed $75,000 (even if by a penny)

Exception: Whatever the plaintiff claims in good faith is OK unless it is clear to a legal certainty that she
cannot recover more than $75,000
Note: What P wins is irrelevant to SMJ

Question 31

Second Requirement: Amount in Controversy - Aggregation**

Answer 31

Rule: Aggregation means adding two or more claims to meet the amount requirement

Note: We aggregate claims of any one P against any one D, and factually unrelated claims CAN be aggregated, with no limit to the number of claims

Question 32

Second Requirement: Amount in Controversy - Joint Claims

Answer 32

Rule: For joint claims, use the total value of the claim
ex. joint tortfeasors

Note: With joint claims, the number of parties is irrelevant

Question 33

Second Requirement: Amount in Controversy - Equitable Relief

Answer 33

Rule: For equitable relief, there are two tests; if either is met, most courts say it’s OK:

(1) Plaintiff’s Viewpoint: Does the blocked view decrease the value of plaintiff’s property by more than $75,000?
(2) Defendant’s Viewpoint: Would it cost D more than $75,000 to comply with the injunction?

Exclusions: Even if the requirements for a diversity or alienage case are met, federal courts decline to hear some cases

Question 34

Second Requirement: Amount in Controversy - Equitable Relief: Types of

Answer 34

Exclusion Rule: Even if the requirements for a diversity or alienage case are met, federal courts decline to hear some cases

i.e. Divorce, alimony child custody or to probate an estate

Question 35

Federal Question Cases (FQ)

Answer 35

Rule: Federal question occurs when the claim in P’s complaint “arises under” federal law (e.g., federal constitution, legislation)

**Well Pleaded Complaint Rule - It is not enough
that some federal issue is raised by the complaint, the
P’s claim itself must “arise under” federal law, so we
look at the claim and ignore other material P alleged

Note: Citizenship or amount in controversy is irrelevant

ONE QUESTION: Is P enforcing a federal right?

Question 36

Removal Jurisdiction

Answer 36

Rule: Removal transfers the case from a state trial court to a federal trial court. If removal was improper, the federal court can “remand” the case back to state court

Occurs when D would prefer to litigate in federal court

Question 37

Removal Jurisdiction: When D can Remove

Answer 37

Rule: D must remove no later than 30 days of service (not filing) of the first paper that shows the case is removable. Usually, that means no later than 30 days of service of process

Question 38

Removal Jurisdiction: Who Must Join in the Removal

Answer 38

Rule: For removal, all Ds who have been served with process must join

Note: They need not all join in the same document; they can file separate notices of removal—just so all of them
remove in a timely fashion
- 30 days starts anew with service on D2
- Remember: Both D-1 and D-2 must file notices of
removal (or they can do so together)

Question 39

Removal Jurisdiction: Plaintiff’s Ability to Remove

Answer 39

Black Letter Rule: Plaintiffs can NEVER remove. Even if D files a counterclaim against P, so P is a defendant on the counterclaim, P can never, NEVER remove

Question 40

Removal Jurisdiction: Which Cases Can Be Removed

Answer 40

Rule: Starting point always: D can remove a case that meets the requirements for diversity of citizenship or FQ.

There are two big exceptions to this but these exceptions apply only if we are removing on the basis of
diversity of citizenship jurisdiction:

Rule: Even though the case meets the requirements for a
diversity case, we cannot remove if either of these two
exceptions applies:
(i) No removal if any D is a citizen of the forum (Instate D Rule); AND
(ii) No removal more than one year after the case
was filed in state court
- One-Year Exception. A diversity case with an in-state D can become removable if P voluntarily dismisses the claim against D-2 (must still be 30 days after service) (watch the dates)

Note: If removed more than one year, must be remanded to state state court
Exception: (Unless D-1 shows that P acted in bad faith by originally joining D-2 to prevent removal

Question 41

Removal Jurisdiction: Which Federal Court Does D Remove

Answer 41

Rule: D removes to the federal district “embracing” the state court where the case was filed (i.e. if in Southern district, must be in Southern district)

Question 42

Removal Jurisdiction: How do D’s Remove a Case

Answer 42

Rule: Ds do not need permission from the federal or state courts to remove,

To Remove:
(1) D files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ)
(2) D attaches all documents that were served on her in
state action and “promptly” serves a copy of the Notice of Removal on adverse parties
(3) Then P files a copy of the “notice of removal” in state court

Question 43

Removal Jurisdiction: Remanding to State Court

Answer 43

Rule: If P thinks the case should not have been removed, then P moves to remand to state court

If P thinks removal was improper for some reason
other than lack of SMJ: (e.g., D did not attach relevant
papers to her notice of removal), P must move to
remand no later than 30 days after Notice of Removal was filed in federal court
- Note: If P fails to do so, P waives right to have the case remanded to state court

If P thinks removal was improper because the federal court lacks SMJ, P can move to remand to
state court anytime

Question 44

Subject Matter Jurisdiction - Supplemental Jurisdiction

Answer 44

General: Supplemental jurisdiction is a form of federal SMJ that it is fundamentally different from diversity and FQ.
Diversity and FQ get cases into federal court.

Supplemental jurisdiction does not. Instead, it gets claims into a federal case even though the claims do not invoke diversity of citizenship or FQ

Question 45

Subject Matter Jurisdiction - Supplemental Jurisdiction: Process

Answer 45

(1) Must have a case that is already in federal court (case invoked diversity or FQ and is pending in federal court)

(2) In any case in federal court, additional claims might be asserted in that case; e.g., maybe P has additional claims, or maybe there’s a counterclaim or crossclaim,
etc.

Note: The federal court MUST have SMJ over every single claim in the case

Question 46

Subject Matter Jurisdiction - Supplemental Jurisdiction: Process (Step 2)

Answer 46

Rule: The federal court MUST have SMJ over every single claim in the case. If it does, it can be heard in the federal court case. If it does not, it cannot be asserted in the pending case in federal court.
i.e. Each additional claim is tested to see if it invokes diversity of citizenship or FQ

BUT if it does not, the
federal court can still hear the claim if it invokes supplemental jurisdiction

Question 47

Subject Matter Jurisdiction - Supplemental Jurisdiction: Analysis

Answer 47

1. The Test - a “common nucleus of operative fact” with the claim that invoked federal SMJ (i.e. the claim that got the case into federal court)
   Note: The test is always met when the claim arises from the same transaction or occurrence (T/O)
2. The Limitation - by statute certain claims cannot invoke supplemental jurisdiction even though they meet “the test.” The limitation applies in diversity cases only
   - In a diversity case, claims by Ps cannot invoke supplemental jurisdiction

Exception to the Limitation: If there are multiple Ps and the claim by one of them
does not meet the amount in controversy requirement, then the limitation does not apply

Question 48

Summary of Supplemental Jurisdiction

Answer 48

Rule: A non-federal, non-diversity claim can be heard in federal court if it meets “the test” UNLESS it is:

a. Asserted by a plaintiff
b. In a diversity of citizenship (not FQ) case AND
c. P does NOT have the ability to bypass the amount in controversy requirement (Note: can bypass if multiple Ps and one meets it)

Question 49

Discretionary Factors

Answer 49

Rule: Even if the requirements for supplemental jurisdiction are met, the court has discretion to decline it.

It can do so if the state law claim is complex or state law
issues would predominate in the case.
**More likely is that It can decline supplemental jurisdiction if the federal claim was dismissed early in the case

Question 50

What Law Applies in Federal Court

Answer 50

Rule: In a diversity of citizenship case in federal court, the Erie Doctrine applies

Question 51

Erie Doctrine

Answer 51

Approach an Erie question in this order:

(STEP 1) Ask: is there some federal law (like federal
constitution or statute or FRCP or Federal Rule of
Evidence) on point that directly conflicts with state
law? If so, apply the federal law, as long as it is valid

STEP 2. If there is no federal law on point, the
federal judge must apply state law if the issue to
be decided is “substantive.” Five issues are clearly
“substantive”:
(1) Elements of a claim or defense,
(2) Statute of limitations,
(3) Rules for tolling statutes of limitations,
(4) Conflict (or choice) of law rules, and
(5) Standard for whether to grant a new trial because a jury’s damages determination is excessive
or inadequate
Note: So in diversity cases under these issues, state law MUST be applied

STEP 3. If there is no federal law on point and the
issue is not one of the five just listed, the federal
judge must determine whether the issue is “substantive.” The law is very unclear, consisting of
some factors that no one knows how to weigh:
a. Outcome Determinative: Would applying or ignoring the state rule affect outcome of case? If so, it’s probably a substantive rule, so should use state law
b. Balance of Interests: Does either federal or state system have strong interest in having its rule applied?
c. Avoid forum shopping: If the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, should probably apply state law

Question 52

Federal Common Law (“FCL”)

Answer 52

Rule: There is no GENERAL federal common law, so the general common law of torts, contracts, and property is STATE law, and federal courts must apply that state substantive law in a diversity case

Note: There are areas in which federal courts are free to make up common law on their own: international relations, admiralty, disputes
between states, the right to sue a federal officer for
violating one’s federal rights. In these areas, there is
no role for state law

**Important area of FCL = the preclusive effect of a federal judgment

Question 53

Venue (Generally)

Answer 53

Rule: P may lay venue in any district where:
• ALL defendants reside (note, special rule); OR
• A substantial part of the claim arose

Note: The provisions above do NOT apply if the case
was REMOVED from state to federal court. There, venue is in the federal district embracing the state court
where the action was filed. These rules are for cases
initially filed in federal court

Question 54

Venue: Substantial part of a claim

Answer 54

Rule: A substantial part of a claim can arise in more than
one district

Ex. So a substantial part of a tort claim might arise where
the defective product was manufactured and where
P was injured. A substantial part of a K claim might
arise where the K was entered and where it was to be performed

Question 55

If D does not reside in the U.S., venue is OK:

Answer 55

Answer: Yes, but if another defendant does reside in the U.S., venue must be proper as to her in accordance with the rules above

(Note If P sues Ds that reside in different districts all in the same forum state, P can sue both D in the venue where either D resides

Question 56

Where do Ds “reside” for venue purposes?

Answer 56

1. Humans reside in the district where they are domiciled (note, can only have one domicile)
2. Businesses (corporations or unincorporated) reside in ALL districts where subject to PJ for the case

Question 57

Transfer of Venue

Answer 57

Rule: Transfer goes from one trial court in a judicial system
to another trial court in the same judicial system. So a
federal district court may transfer the case to another
federal district court.

Terminology: The original court is the “transferor,” and the one to which the case is sent is the “transferee.”

BUT the transferee must be a proper venue and have
PJ over the defendant—and generally those must be
true without waiver by D

Exception: Under transfer statute #1 (below), the court
can transfer to any district (even an improper venue)
if all parties consent and the court finds cause for the
transfer. It is unlikely that P will consent to this, so it’s
not clear this happens much.

Question 58

Transfer Statutes (#1)

Answer 58

Statute #1: If the original district is a proper venue,
that court can order transfer based on convenience of
parties and witnesses and in the interest of justice.
Because transfer overrides P’s choice of forum (and
because P chose a proper venue), the burden is on
the person seeking transfer (usually D). Factors that court looks to in deciding where to transfer is public and private factors showing that the tranferee is at the center of gravity

Public:

• what law applies
• what community should be burdened w/ jury service

Private Factors: (convenience)
- where the evidence and witnesses are

The existence of a valid forum selection clause (we’ll
see in a minute) prescribing venue in the other federal district establishes that the private factors support
transfer

Question 59

Choice-of-Law Rules

Answer 59

Rule: The transferee

applies the choice of law rules of the transferor unless transfer is to enforce a forum selection clause

Question 60

Forum-Selection Clause (“FSC”)

Answer 60

Rule: A forum-selection clause (“FSC”) is a provision in which the parties agree that a dispute between them
will be litigated in a particular place

Federal law enforces FSCs (if they’re not unreasonable). Some states do not. In federal court, federal law
governs transfer. So a federal court may enforce a
FSC even though a state court in that state would not

Question 61

Transfer Statutes (#2)

Answer 61

Statute #2: If the original district is an improper venue, the court may transfer in the
interest of justice or dismiss

Usually the court will transfer if possible. When it does,
the transferee applies the choice-of-law rules of the
state in which it sits (in a diversity case), and NOT the
choice-of-law rules of the transferor district

Question 62

Forum Non Conveniens

Answer 62

Rule: Like transfer, there is another court that is the center
of gravity, that makes more sense than the present
court. But here, the court does not transfer to the more convenient court, SO it dismisses or stays the case

Question 63

Stay

Answer 63

Rule: To stay means hold in abeyance; nothing happens
in the case, it just sits there

Note: Whether it dismisses or
stays, the idea is that P will then sue in the other court

Why does the court dismiss or stay? Because the more
convenient court is in a different judicial system (e.g.,
a foreign country), so transfer is impossible

The other court must be available and “adequate.”
Suppose the center-of-gravity court, which is in a foreign country, does not permit jury trials, recovery for
pain and suffering, or other remedies

Question 64

Right to Amend

Answer 64

Rules:

• P has a right to amend 21 days after D serves her first rule 12 response
• P has a right to amend

Note: A right to amend saves the waivable defenses

Question 65

No Right to Amend

Answer 65

Rule: If there is no longer a right to amend, parties Must seek leave of court. It will be granted if “justice so
requires.”

Factors courts look to to rule:

• delay
• prejudice
• futility of amendment

Question 66

Defendant’s Response

Answer 66

Rule: Rule 12 requires D to respond in one of two ways:

(1) By motion or
(2) by answer.

To avoid default, D must do one of these two things no
later than 21 days after being served with process.
If D waived service, D has 60 days from when P
mailed the waiver form

Question 67

Motions (Rule 12)

Answer 67

Rule: Motions are not pleadings; they are requests for a court order.

Issues of form:
• 12(e) motion for more definite statement—the complaint is so vague or ambiguous D simply cannot
respond; must make this motion before answering;
• 12(f) motion to strike—asks the court to remove
redundant or immaterial things from pleadings; any
party may move for this

Question 68

Rule 12(b) Defenses

Answer 68

• (1) lack of subject matter jurisdiction (SMJ);
• (2) lack of PJ;
• (3) improper venue;
• (4) improper process (problem with the papers);
• (5) improper service of process;
• (6) failure to state a claim;
• (7) failure to join indispensable party.
These defenses can be put either in a motion to dismiss or in the answer

Question 69

Waivable Defenses

Answer 69

Rule: “Waivable” defenses must be put in the first rule 12 response (motion or answer) or else they are waived

Waivable Defenses:

Note: Whenever the court determines that it has no SMJ, it must dismiss (or, if the case had been removed from state court, must remand to state court)

Question 70

The Answer

Answer 70

Rule: Answers are pleadings. Two things must be done in the answer:

a. Respond to allegations of complaint:
(1) Admit;
(2) Deny;
(3) State that you lack sufficient information to admit or deny

b. Raise affirmative defenses:
these inject a new fact into the case, which will allow
D to win. Classic affirmative defenses are statute of
limitations, Statute of Frauds, res judicata, self-defense. All Rule 12(b) defenses are also affirmative defenses
- If D asserts an affirmative defense, P does not have to respond to the answer. The allegations in D’s answer are
deemed denied

Question 71

Pleadings: Complaint

Answer 71

Rule: Filing a complaint commences an action The complaint must contain:
• A statement of grounds of subject matter jurisdiction;
• A short and plain statement of the claim, showing
entitled to relief;
• A demand for relief sought (e.g., damages, injunction, declaratory judgment)

Note: In stating the claim, federal courts traditionally
used “notice pleading,” which means you only
need enough detail to put the other side on notice.
Now, though, the Supreme Court requires more
detail (Twombly and Iqbal)
- Plausibility

Question 72

Pleadings: Complaint (Plausibility)

Answer 72

Rule: The Supreme Courts now require plausibility (Twombly and Iqbal) for filing a complaint

• To determine plausibility, the judge uses her own experience and common sense. D can challenge the complaint by making a Rule 12(b)(6) motion

Particularity - Three matters must be pleaded with even more detail - particularity and specificity are ___

Question 73

Amended Pleadings (Variance)

Answer 73

Rule: That’s where the evidence at trial does not match what was pleaded, can amend to plead the new claim

• Why: This ensures that the pleadings match what was
  actually tried
• Note: D can object or it is brought in

Question 74

Amendment after the Statute of Limitations Has Run (“Relation Back”)

Answer 74

Rule: To join a claim not originally asserted is not barred if the amendment relates back. Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as
the original pleading
Relation back means you

**Treat the amended pleading as though it was filed when the original was filed,
so it can avoid a statute of limitations problem

Question 75

Amendment after the Statute of Limitations Has Run (“Relation Back”): To change a defendant after the statute has run

Answer 75

Rule: The amendment will relate back if:
• The amendment concerns the same conduct, transaction, or occurrence as the original;
• The new defendant knew of this case within 90
days of filing;
• She also knew or should have known that, but
for a mistake, she would have been named
originally.

Note: This applies when P sued the wrong D first, but the right D knew about it

Question 76

Supplemental Pleadings

Answer 76

Rule: These set forth things that happened AFTER the pleading was filed

Note: No RIGHT to file, you must make a motion; whether it should be granted is in the discretion of the court

Question 77

Rule 11

Answer 77

Rule: Rule 11 applies to all documents except discovery
(which are treated by a different rule)

• When the lawyer or pro se party signs documents, she
  certifies that to the best of her knowledge and belief,
  after reasonable inquiry
  • The paper is not for an improper purpose, and
  • The legal contentions are warranted by law (or
  nonfrivolous argument for law change), and
  • The factual contentions and denials of factual contentions have evidentiary support (or are likely to
  after further investigation).
  In addition, you make this certification every time you
  “present” a position to the court (e.g., when you later advocate a position taken in the document). It is a
  “continuing certification.”

Question 78

Rule 11 Violations

Answer 78

Rule: If there is a violation (e.g., assertion of a baseless
claim), Rule 11 sanctions may be ordered against the party, attorney, or firm responsible

General rule: Law firm is jointly responsible with its
attorney who violates Rule 11

Note: Before imposing a sanction on you, the court must give you a chance to be heard

Purpose: the point is to deter, not punish (courts often impose non-monetary sanctions)

Question 79

What to Do When Rule 11 is Violated

Answer 79

Rule: You serve the motion on other parties but cannot file it. The party in violation has a safe harbor of 21 days
in which to fix the problem and avoid sanctions. If she
does not do so, then the motion can be filed

Note: The court can raise Rule 11 problems on its own (sua sponte) and there is no safe harbor. The court usually issues an “order to show cause” (“OSC”) why sanctions should not be imposed. The court must give a chance to be heard before imposing a sanction on anyone