Rules

Question 1

rule 4

Answer 1

summons

Question 2

what does process consist of?

Answer 2

a summons and a copy of the complaint (tells D what the claims are)

Question 3

who can service be made by?

Answer 3

any non party who is at leas 18

Question 4

types of service

Answer 4

1) personal service (anywhere)
2) substituted service (only can be served at the D’s dwelling or usual abode and must serve someone of suitable age and discretion who resides there)
3) serve’s def’s agent
4) 4(e)(2) allows to use methods of service under state law (certified mail)

Question 5

rules for service on businesses

Answer 5

1) serve an officer or manager or general agent
2) permits service of a summons anywhere within the state in which the district court sits (in harmony with enabling act)

Question 6

how to waive service

Answer 6

1) waiver by first class mail and easy to do
2 )plaintiff mails to the def process and 2 copies of a waiver form and self-addressed envelope

Question 7

if D mails back waiver form what happens?

Answer 7

she waived formal service of process

Question 8

why would a defendant waive service of process?

Answer 8

1) they will have longer to reply with defensive response
2) process requires 21 days but waiver you have 60
3) if they don’t return waiver and does not have good cause then the def must pay cost of service

Question 9

what is the geographic limitation of serving process?

Answer 9

within a state which the fed ct sits

Question 10

what is the special service rule of rule 4?

Answer 10

applies to parties joined under rules 14 or 19 and allows for service within a judicial district of the US and no more than 100 miles from where the summons was issued (“bulge rule”)

Question 11

when is service permitted?

Answer 11

when authorized by a fed statute

Question 12

what two steps does a limited federal long-arm statute call for? (international D)

Answer 12

1 )is D subject to jurisdiction in any of the 50 states?

2) do D’s contacts with the US satisfy due process

Question 13

rule 5

Answer 13

service

Question 14

Rule 8

Answer 14

complaints/pleadings

Question 15

what does rule 8 require the D to do?

Answer 15

either admit, deny or plead insufficient info in response to each allegation.

Question 16

what does failure to deny under rule 8 constitute?

Answer 16

an admission but doesn’t apply to damages

Question 17

what was rule 8(d) motivated by (amended and supplemental pleadings)

Answer 17

belief that anyone with any injury should be able to plead a case w/o needing to know the terms.

Question 18

under rule 8 what must a complaint contain?

Answer 18

a “short and plain” statement of why the court has jurisdiction and why the pleader is entitled to relief and what relief is being sought.

Question 19

Rule 9

Answer 19

special circumstances

Question 20

what does rule 9 do?

Answer 20

heightened the pleading requirement beyond the requirements of Twiqbal. (fraud, mistake or special damages. need details)

Question 21

Rule 11

Answer 21

signing/representations/sanctions

Question 22

what does rule 11 apply to?

Answer 22

all docs except discovery

Question 23

characteristics of rule 11

Answer 23

1) requires attorney to sign all docs
2) sanctions are discretionary
3) safe harbor- 21 days to fix problem, then can file motion
4) rule applies to every paper filed in court other than discovery

Question 24

what are the requirements for a complaint under rule 11?

Answer 24

1) SMJ
2) short and plain statement of claim
3) demand for relief

Question 25

3 rules from Twiqbal when reviewing a complaint

Answer 25

1) ignores conclusions of law and focuses on the alleged facts 2) facts must support plausible claim, not just a possible claim 3) to determine plausibility the judge uses their own experience and common sense (subjective)

Question 26

Rule 12

Answer 26

defenses

Question 27

what two options does rule 12 give Ds?

Answer 27

1) file a responsive pleading (answer) 2) file a motion that raises one or more of the defenses and objections set out in that rule (7 defenses in rule 12(b) can be raised if answer is not waived)

Question 28

under rule 12 what is motion for judgement on the pleadings?

Answer 28

requires an answer to be filed first and allows for resolution of an issue or entire case prior to discovery.

Question 29

when is a rule 12 motion for judgement on the pleadings appropriate?

Answer 29

1) when D has not offered a legally sufficient denial in his answer 2) if there's some legal bar to recovery 3) if it's clear after the complaint that the case will turn on a pure question of law (no facts)

Question 30

how many days does rule 12 give to respond to a complaint?

Answer 30

21 days (time may be extended by court order)

Question 31

can a plaintiff amend a complaint under rule 12?

Answer 31

Yes but only once as a latter of course at any time before a responsive pleading is served

Question 32

if D moves under rule 12 and the courts denies the motion what happens?

Answer 32

D must file an answer or plead otherwise in a response

Question 33

what is an answer?

Answer 33

a kind of pleading and governed by rule 8 and 10

Question 34

what are the 2 ways that a D can respond to a complaint by:

Answer 34

1) make a motion (not pleadings/request for court order0 | 2) answer (pleading)

Question 35

what are the 7 defenses under rule 12 that a D can raise to dismiss the suit?

Answer 35

1) lack of SMJ 2) lack of PJ 3) improper venue 4) improper process (service) 5) failure to state a claim 6) failure to join an indispensable party under rule 19

Question 36

what type of allegations are strike under rule 12?

Answer 36

scandalous or irrelevant allegations

Question 37

how long does a D have to respond to a complaint

Answer 37

21 days after SOP.

Question 38

what does D risk if they don't respond in 21 days?

Answer 38

default judgement.

Question 39

Rule 13

Answer 39

counterclaims/crossclaims

Question 40

rules of a crossclaim 13(g)

Answer 40

1) between co- D's or Co-p's | 2) has to be permissive (same transaction or occurrence)

Question 41

what rule governs counter and cross claims?

Answer 41

19 and 20

Question 42

what does joinder by def usually mean?

Answer 42

counterclaims are involved

Question 43

what are the two types of counters claims?

Answer 43

1) compulsory 13(a) - if the party that has the claim doesn't assert it, they lose it. Use it or lose it. Arises from the same occurrence or transaction. 2) permissive - you may assert in same claim, but don't have to

Question 44

can there be compulsory crossclaims?

Answer 44

no

Question 45

what happens once a proper crossclaim is asserted?

Answer 45

rule 18(a) kicks in, allowing them to add any unrelated claim.

Question 46

Rule 14

Answer 46

Impleader/3rd Party

Question 47

what is impleading?

Answer 47

when additional parties are around into the case by the defendant

Question 48

once a third party is brought in under rule 14 what happens?

Answer 48

the P can bring claims against the 3rd party defendant and the 3rd party D can assert counter-claims against P

Question 49

what does rule 14 provide?

Answer 49

a vehicle - by third party plaintiffs, must have substantive law to sue third party D

Question 50

Rule 15

Answer 50

Amending complaint/summons

Question 51

what are the rules of amendment under rule 15?

Answer 51

1) P has right to amend within 21 days after D serves first Rule 12 response 2) D has the right to amend once within 21 days after serving answer 3) if you don't have time to amend, you can ask for leave to ament or stipulate with other party to allow amendment

Question 52

what is variance (rule 15)?

Answer 52

evidence at trial doesn't match what was pleaded. Can only come up in trial.

Question 53

what happens when there's variance (15)?

Answer 53

1) other party will object to variance, then evidence is not admissible 2) or other party will not object and evidence will come in and act as if evidence was pleaded and even amend to include evidence

Question 54

what happens in regards to amendments after the SOL runs out?

Answer 54

you can relate the amendment back to the filing of summons

Question 55

what is involved in relating a filing back?

Answer 55

1) add a claim - much arise out of the same conduct, transaction, or occurrence as the original complaint 2) change D - if P sued the wrong D, but the right D knew about it

Question 56

what are supplemental pleadings (15)?

Answer 56

add something that happened after the case was filed (must ask for permission of the judge)

Question 57

Rule 16

Answer 57

pre-trial conferences/scheduling/sanctions

Question 58

what does rule 16 do?

Answer 58

1) case management rule 2) strengthen a judge's authority 3) encourages the judges to facilitate settlements 4) Judge MUST play a role, not anyone else

Question 59

Rule 18

Answer 59

joinder of claims

Question 60

what type of claims does the plaintiff join claims under rule 18?

Answer 60

they can join as many as they want and they don't have to be related

Question 61

what do you still need for the plaintiff to join claims under rule 18?

Answer 61

SMJ

Question 62

Rules for plaintiffs joining claims under rule 18

Answer 62

1) 1 P v. 1 D 2) can assert any claims under joinder that they have against D 3) once you assert a cross-claim, you are a claimant 4) permissive rule

Question 63

what are the guidelines for crossclaims?

Answer 63

the parties need already be in the claim on, on the same side of the V and must arise out of the same transaction or occurrence.

Question 64

Rule 19

Answer 64

necessary parties

Question 65

characteristics of rule 19

Answer 65

1) additional parties who must be joined | 2) nonparty absence is necessary

Question 66

what are 3 circumstances when an absentee is necessary/important under rule 19?

Answer 66

1) if they're absence in ct cannot accord complete relief between existing parties 2) where the absentee claims an interest related to the case and its interest will be harmed if not joined (opposite of 1) 3) where if the absentee isn't joined then 1 of the parties has a significant risk of being subject to 2 different standards (duplicative or inconsistent obligations)

Question 67

what are 2 scenarios under rule 19 where a court says a person needs to be joined but impractical because of no PJ or SMJ

Answer 67

1) allow existing parties to continue with case even though the court deemed the absentee "necessary" 2) dismiss case - deeming the absentee as "indispensable"

Question 68

when will a court never dismiss a case under rule 19?

Answer 68

if P can get relief nowhere else.

Question 69

rule 20

Answer 69

permissive parties

Question 70

characteristics of rule 20

Answer 70

1) additional parties who may be joined (permissible) 2) allows P to structure a multi-party case 3) Ps can also join with other Ps against D or other D's and same for D.

Question 71

what are the requirements for rule 20?

Answer 71

1) claims arise from the same transaction or occurrence | 2) MUST allege/assert common question of law or common facts

Question 72

rule 21

Answer 72

misjoinder/non joinder

Question 73

what is misjoinder (21)?

Answer 73

adding the wrong person is not a basis for court to dismiss suit

Question 74

if tortfeasors are joined as defendants how should they be joined?

Answer 74

under rule 20, they are never necessary