Beruflich Dokumente
Kultur Dokumente
th
Service of Process
INTRO: 14 amendment and due process requires giving person notice that claim against them
and allow them opportunity to respond. In order to satisfy that requirement, the service most
meet both the constitutional and statutory requirements:
1. Constitutional Requirement (challenging notice)
a. Mullane test:
i. Reasonable likely to give actual notice? (If yes, done)
1. Would you really use this method if you wanted to contact them?
2. Green v. Lindsay- if service unreasonable, doesnt matter if they got it
3. Jones v. Flowers: not constitutional if you know they didnt get it.
ii. (If no) did you do the best you could?
1. Form must not be substantially less likely to work than others
2. Matters if you know who D is
2. Statutory Requirement (4(c)) (proper service, challenging service)
a. 4(b)- File complaint, present summons,
i. Clerk signs, seals and issues it to P for service
b. (4)(C)(1)-Serve summons with a copy of complaint, within 4(m) limit [120 days of
filing or dismissed under 12(b)(5), w/o prejudice)
i. With the following things [4(a)(1)(A)-(G)]
1. Name the court and the parties
2. Directed to D
3. State name and address of Ps attorney or of P if unrepresented
4. State the time within which the D must appear and defend
5. Notify D consequences for failure to appear is default judgment
6. Signed by clerk
7. Bears court seal
c. By person
i. Who is least 18 and not party to complaint (4)(C)(2)
ii. Or appointed by court 4(C)(3)
d. Serving person (4(e))-Not minor, incompetent or waiver
i. IN THE US OR TERRORITY
1. 4(E)(1)-Follow state law where court is located/ service will be made, OR:
2. Do any of these:
a. Deliver copies personally to actual person 4(e)(2)(A)
i. May use trickey, and they dont have to always take it. Can
put on table and notify tell them
b. Leave copies at dwelling or usual place of adobe with
someone of suitable age and discretion who resides
there. 4(e)(2)(B)
i. Dwelling=domicile sometimes
1. National dev. Co v Triad holding-when person has
multiple dwellings, service is proper at house which
currently living
2. Koskie- Ny apartment- has furnished it like a house,
had maid, was there.
3. First nat. bank & trust Co. V ingerton- hotel room
4. Ali v mid Atlantic. - Parental home while kid in
college away at school
ii. Suitable age
Waiver of Service
1. P must request waiver and include: 4(D)(1)
a. In writing, and addressed
i. Individual D
ii. Or managing/ general agent/ other authorized for crop or by law.
b. Name court where complaint was filed
c. Copy of complaint, 2 copies of waiver form, and means for returning form
d. Information on consequences of waiver
e. State date request was sent
f. Give D reasonable time to accept, 30 days after if sent in US 4(d)(1)(f)
INTRO: Venue is the third and final requirement in order to determine where a case can and
should be brought under the Federal rules. 28 USC 1390 describes the rules and limitations of
venue which describe which Federal districts can hear the case in a given state. Unlike IPJ and
SMJ, venue is not a constitutional right or an issue of power, but rather is merely a matter of
convenience for all involved.
1. First check SMJ and IPJ to insure can be brought in Fed court in that state.
2. Venue in General 1391-can brought in Any district where:
a. RESIDENCE-Any D resides, if all Ds are in the same state 1391(b)(1) OR:
b. EVENTS-A Substantial (not majority) part of the events or commissions giving rise
to claim occurred, or substantial part of property that is subject to action lies.
1391(b)(2) OR:
c. NO WHERE ELSE- any judicial district in which any D is subject to IPJ. 1391(b)(3)
3. If A then: Residency
a. Natural person and aliens admitted to US, reside where domiciled. 1391(c)(1)
i. To change:
1. Reach new state
2. Take up residence in new state
3. Intent to remain for foreseeable future/ absence of plans to leave
b. Business 1391(C)(2)-broad reading to apply to all businesses-Corp, Llc, etc.
i. P Corp- only where principal place of business
1. Headquarters, Incorporation
ii. D Corp-Where subject for personal jurisdiction
1. IPJ for Corps
a. Cause of action arouse of contacts (SIPJ)
b. General IPJ
i. Headquarters
ii. Place of Incorporation
iii. 1391(d) When multiple districts in a state that a corp could be brought for
IPJ:
1. Corp is subject to venue in any district that would have IPJ if they were
separate states, OR
2. If none would, then district which it has most significant contacts
c. Non US resident, any district 1391(c)(3)
i. Ignore venue when joining out of state part, any district
Transfer of Venue
1404 Proper original venue
iii. Venue
1. Fed district where action might have been brought
iv. Should already have SMJ anyway, but check
2. 1404(a) Discretion (should we?)
a. Interest of justice
b. Convenience of the parties
c. Convenience of the witnesses
3. Law applied
a. Van Dusen- When D ask- Achangeofvenueunder1404(a)generallyshouldbe,withrespecttostate
law,butachangeofcourtrooms
b. Ferens v. John Deere-even if P request, law stays same
1. Having case in forum that is at home with the law that must govern
2. local interest in having local controversies at home
3. Unfairness of burdening citizens in an unrelated forum with jury duty
4. Avoidance of conflicts of law, or in app to foreign citizens
ii. Private interest- Piper- cost, location of witnesses, access to proof, cost getting
people there.
1. Relative ease of access of proof
2. Availability of compulsory process for attendance of unwilling.
3. Practical problems that make trial easier, expeditious and inexpensive if in
this forum
Pleadings
INTRO: Pleadings are the method by which a claim is begun and responded to in the court
system. In the federal system, we have very strict rules regarding pleadings and what is
necessary to meet the requirements.
General
1. R7- Pleadings allowed
a. Complaint
b. Answer to complaint,
c. Answer to counterclaim designated as counter claim,
d. Answer crossclaim
e. Third party complaint
f. Answer to third party complaint
g. If court orders one, a reply to an answer
2. Form of pleadings-R.10
a. Caption, name of parties
i. Caption=Court names, title, file number, rile 7(a) designation.
ii. Title= name of both parties, title of other pleadings, refer to others generally
b. Paragraphs-numbered
c. 10C- can attach documents for reference
3. Attorney representation to court
a. Every pleading, written motion, and other paper MUST BE SIGNED by at least one
attorney of record 11(a).
ii. Certifies that to best of person knowledge, that information, and belief, formed
after an inquiry reasonable under the circumstances-11 (b)
1. Not being presented for improper purpose-11 (b)(1)
2. Contentions have warranted basis of existing law, or non-frivolous for
modifying existing law or establishing new one- 11(b)(2)
3. Factual contentions have evidentiary support or will likely have such
support- 11(b)(3)
a. Cant just trust clients word, do research
4. Denials of factual contentions are warranted on evidence 11(b)(4)
ii. Sanctions may be imposed 11(c)
1. Must give attorney notice and chance to fix
2. Must wait 21 days after serving attorney before filling motion under 11(c)
(2)
3. Zuk v Eastern Pennsylvania- Rule 11 appropriate when council fails to
make adequate inquiry into both law and facts, which is reasonable under
circumstances
vii.
viii.
ix.
x.
xi.
xii.
Failure of consideration
Fraud
Illegality
Injury by fellow servant
Laches
License
xiii.
xiv.
xv.
xvi.
xvii.
Payment
Release
Res judicate
Statute of frauds
Statute of limitations
xviii. Waiver
xix. If any misstated between counterclaim or defense construe for justice- 8(c)(2)
e. Defense/ Reasons to dismiss:
i. 12(b)(1) lack of SMJ
ii. 12(b)(2)- lack of IPJ
iii. (3)-improper venue
iv. (4)- insufficient process (technical defect- court disfavors dismissal and can
overlook technical details)
v. (5)- insufficient service of process; (delivery not accomplished or past 120 days)
vi. (6)- failure to state a claim upon which relief can be granted (not enough to
create liability) If facts alleged even if true would not be illegal- (8a2 failure)
vii. (7)- failure to join a party under rule 19
f. If you do not put affirmative defenses from b2-5, you risk waving them
i. 12b2-5 If not raised in 1st response then waived
ii. 12b6-7- can be brought up until eve of trial
iii. 12b1- can be brought up anytime
g. Three possible answers for each claim 8(b)(1)-(6)
i. Admit
ii. Deny
1. General-deny everything
2. Specific-deny specific paragraphs or sentences
3. Zielinksi v. Philadelphia- Claims not specifically denied are taken as
true
a. Cannot have a general denial, unless, in good faith, counsel actually
intends to deny whole complaint.
iii. Claim to have insufficient knowledge to admit or deny-acts like denial
iv. COPY OF ANWSER
v.
vii.
-Against(insert Defendants)
(TYPE OF CLAIM)
Defendant,
___________________________________________________________
Plaintiffs, by his/ her attorneys, (law firmname), alleges:
THE PARTIES
1. ___________is acitizen of _______________
2. On information and belief, _______________is a _____________corporation with its principal places
of business in____________________
JURISDICTION AND VENUE
3.
4.
5.
6.
viii. MOTIONS/JUDGMENT
1. Motion to dismiss under rule 12ba. Motion 7(b) a request for a court order must be made by a motion
b. Attacks legal basis of claim
c. Can be made on grounds of 12(b)(1)-(7) (add these)
i. Lack of SMJ
ii. Lack IPJ
iii. Improper venue
iv. Insufficient process
v. Insufficient service of process
vi. Failure to state a claim upon which relief can be granted
vii. Failure to join a required party
d. Only one motion for all claims under this 12(g)(2)
e. 56a -Either party can motion for summary judgment and can pertain to only certain
issues
f. Must be made before answer, or wavied except for 12(b)(1)(6)(7)
2. Motion for Summary Judgment FRCP 56
a. FRCP 56a-Court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and that movant is entitled to judgment
as matter of law
i. No genuine dispute=
1. Anderson- demand more than a mere scintilla. Must show that there is
enough evidence that a reasonable juror might find for the opposing party
to survive.
a. Standard for summary judgment will depend on standard for which
the claim must be proved
b. Brenan dislikes this since it means judge has to answer the question
by weighing the evidence himself (makes him less independent).
ii. Material Fact=
1. supports rules or requirements of under lying claim/ will effect outcome
2. Material facts= ANDERSON facts that will affect the outcome of the case,
factual elements that have to be established to prove a claim that you are
making.
3. Celotex- Movant in a motion must show absence of factual dispute,
movant not required specifically to negate any aspect.
a. Moving party had to comb record and give court reason, but only
show that other party lacks evidence.
iii. No controversy=nothing for court/jury to do
b. Procedure:
i. Support with facts: Part asserting that a fact is not genuinely disputed must:
1. Cite the record to prove-(letters, documents, all introduced through
affidavit) 56c1A or
2. Show that party cannot produce evidence to support claims 56c1B
ii. If moving party succeeds, then burden shifts to other party to prove wrong
iii. 56d- if facts can be found, but have not been found yet, judge may give the D
more time to find them. Have to show you could find something.
c. 56b- must be filed anytime until 30 days after close of discovery
d. What if SJ takes away piece that jurisdiction rested on?
i. Gibbs- they allowed it
ii. Court will reconsider SUpp
iii. Becomes a question of discretion
iv. Probably constitutional
3. Motion for Judgment
a. 12(c) after pleadings are closed, but early enough not to delay trial
b. 12(c) looks to all assertion. 12b looks just to the pleadings
c. 12(c)- have to motion to dismiss but you need to go into discovery to have the proof
4. Voluntary dismissal
a. 41(a)
i. By P 41(a)(1)1. notice of dismissal before D replies
2. stipulation signed by all parties
3. 42(a)(1)(b) without prejudice
ii. By Court 41(a)(2)
1. This is without prejudice
5. Involuntary dismissal
a. 41(b)
i. Failure to prosecute- have to be actively engaged in getting the case on the
calendar.
ii. With prejudice
6. Default Judgment
a. When a party against whom a judgment for affirmative relief is sought ahs failed to
plead or otherwise defend, clerk must enter the partys default 55(a).
b. Rule 54- can get more than what you ask for.
ix.
x.
xi.
xii. Intro:
JOINDER OF CLAIMS
1. RULE 18 Permissive Claims:a. Party seeking relief against another party may assert any claims, counter claims, cross
claims, or third party claims
b. Must own basis of jurisdiction
2. RULE 13 Counter Claims-a party on one side has claim against party opposing party
a. COMPULSORY? (Lose it if dont plead)-13a
i. Does counterclaim arise out of same transaction or occurrence (13a1A)
1. STOO= three tests:
a. Same Facts, evidence, witness
b. Same Event-Unity of time and place
c. Logical relationship.
ii. Does not require adding another party the court does not have jurisdiction over
(13a1B)?
1. 13H- Adding party? See 19/20
iii. Yes, it is compulsory and must be added under 13a, or party loses their
opportunity to raise claim
1. Exceptiona. Claim is already pending somewhere else- 13a2A
b. Court cannot exert jurisdiction, and person does not exert
counterclaim 13a2B
b. PERMISSIVE otherwise under rule 13b. These claims do not have to be raised, if they
are, they might be separated into a separate trial under 42b since they do not promote
efficiency.
c. Other considerations
i. Dido v. Whitney-courts have discretion over whether they can hear a claim
that should have been pled as counterclaim, but never heard in court because of
settled
ii. Carteret Savings and loan assn. v. Jackson- there is no discretion to hear a
claim that should have been brought as counterclaim when default judgement.
3. RULE 13: CROSS CLAIMS- does a party on one side of the suit have a claim against a
party on the SAME side?
a. Always Permissive: MAY state
i. Does the claim arise out of the same transaction or occurrence as the original
claim or is related to property that is subject of original claim? 13g
1. STOO= three part test
a. Same facts, evidence, witnesses
b. Unities of time and place
c. Logical Relationship
ii. Yes= cross claim allowed under 13g (not compulsory)
1. May include a claim that co-party is or may be liable to cross-claimant for
all or part of a claim asserted in the action against the cross-claimant
13g
a. Not compulsory because we do not want them fighting each other/
want common defense
b. Jones v. Ford Motor= Claims will need own independent form of
jurisdiction, if doesnt meet STOO, most likely wont meet Same
Common Nucleaus.
iii. No=cross claim not allowed
xviii.
1. SUBJECT MATTER JURISDICTION
a. 1332-diversity?
b. 1331-Federal question?
2. 28 U.S.C. 1367
xix.
When District courts have original jurisdiction, the court shall have supplemental over all
other claims that are so related to claims in action that they form part of SAME CASE AND
CONTROVERSY under art III of constitution. Includes joinder and Intervention
a. CAN WE (requires)
i. Pending case with Original Jurisdiction
ii. Claim must be so related to form same constitutional case-1367a
1. Same case and controversy under art 3 of const (codifies Gibbs)
a. Case= anything that would ordinarily be brought together
b. UMW v. Gibbs- common nucleus of operative fact.
i. Would Claims ordinarily be expected to try them all in once
judicial proceedings? (Similar to same transaction, but
different)
ii. Operative facts= who, what, how, why
iii. If you pass R-20s common transaction or occurrence, court
will mostly likely pass under Gibbs common nucleuses of
operative fact
c. Applies to Ds and Ps
iii. Founded solely on diversity? (Codification of Owen v. Kroger) 1367b
1. If yes- NO SUPP JURISDICTION on
a. Claims By Ps against persons made parties under R.14, R.19,
R.20, R.24
i. Inconsistent with the jurisdictional requirement of 1332
1. Amount in contrevsory is okay someone else has. you
are ok as long as one person along the line meets itAllapatha
b. Claims By Peron who would be joined as Ps under rule 19 or
seeking to intervene as P under 24
2. Such cases would be against Strawbridge
3. ANALYSIS:
a. Is Independent jurisdiction? Yes, than Supp doesnt matter
b. Original Jurisdiction based on Diversity ? If not, then stop
c. Claim by P?
d. Claim against persons added under 14,19,20,24
i. If yes, does it destroy complete diversty?
1. Yes=barred
2. No=move on
e. Would party be added as P under 19 or 24
i. If yes, destroy diversity?
1. Yes: barred
2. No=all good
4. Fairview Park v. Al Monzo- Even if 1st claim dismissed, Supp can go on,
unless dismissed for SMJ grounds- at least for crossclaim/ can maybe
argue for counter
b. SHOULD WE? (Courts may decline to join if 1367c)
i. Complex or novel issue of state law
ii. Claim would dominate other claim (lot more evidence, or lot more money)
iii. Court have dismissed all claims over which it has original jurisdiction
iv. Exceptional circumstances with compelling reasons.
xx.
xxii.
xxiv.
a. OVERAL JOINDER OF PARTIES
v. Joining someone through amendment=15c1C (pleadings)
vi. Failure to join a party could result in dismissal: 12b7
vii. For all parties: treated as an original pleading= needed service under 4 and must
respond under 12
1. RULE 19-COMPULSORY PARTIES
a. MUST WE?
i. Person subject to service (IPJ) and will not deprive court of SMJ must be joined if
19A1
1. 19a1A-Without them, court cant give complete relief among existing
parties OR
a. In LA for torts, court can only hold person to his share, no tub
b. Temple- not all tortfeasors required, even without them court didnt
dismiss.
i. In Common law, than can get full amount
2. 19a1B-Person has an interest relating to the subject matter and without
them:
a. Bi-It will impede or impair their ability to protect the interest, or
b. Bii-Leave an existing party subject to double, multiple, of
inconsistent liability
c. Hezlberg Diamonds v. Valley- Should be taken on case by case
analysis, even if not joined, they still have all rights no matter the
outcome.
ii. If required person not joined, court must order that person be made party, if
person refuses to join as O, made me made a D or involuntary P- 19A2
iii. If joined party objects to venue and joinder would make venue improper, court
must dismiss party-19a3
iv. If not required go to R20.
xxv.
2. RULE 20-PERMISSIVE PARTIES
a. Persons who may join or be joined:
i. May join Ps if: 20a1
1. 20a1A-Assert relief jointly, severally, or in the alternative with respect to
or arising our of same transaction, occurrence, or series of transactions
or occurrences (event, overlap, of facts and witness, or logically
connected), and
2. 20a1B-Any question of law or fact in common to Ps
ii. May join Ds if: 20a2
1. 20a2A-Assert relief jointly, severally, or in alternative with respect to or
arising out of same transaction, occurrence, or series of T or O: and
2. 20A2B-Any question of law or fact in common to all Ds will arise
iii. STOO test=
1. Same facts, evidence, witnesses
2. Same event, time and place
3. Logical relationship
4. Kedra v. Philadelphia- Cops beating people, helps us to look for these
factors
iv. Parties need only be interested in portion of relief
v. Consider judicial efficiency
xxvi.
xxvii. DETERMINE POWER/ FEASIBLE
xxxi.
xxxiii. Is a party adding a claim to get reimbursed if the party is found guilty? Cannot
be a claim stating that the current D holds no guilt or shouldnt be being sued. In
that case, we trust the court to figure out the error and that the P will lose.
xxxiv.
xxxvi.
xxxvii. DETERMINE POWER TO BRING IT
a. SMJ
a. 1331
b. 1332
c. 1367
i. For Diversity
1. 3rd party P can bring in whomever he wants
a. But P cannot make a claim against the 3rd party D if that would
destroy complete diversity
2. P could not implead non-diverse third party D in order to get around
complete diversity
3. Banks v. City of Emeryville- do not need independent SMJ for impleader
of 3rd party, but do for claims brought against them by P.
b. IPJ
xxxviii.
xxxix.
xl.
xli.
xlii.
xliii.
xliv. RULE 24 INTERVENTION
1. SMj
a. As a righti. Can get it goes closely related enough to show common nucleus
b. Permissive
i. Must likely not close enough related to get it, otherwise it would be as a right
c. Diversity
i. Intervene as non-diverse P based on diversity-no supp
ii. Intervene as non-diverse D based on diversity-supp available
2. IPJ/venue- waiving them by joining.
xlvii.
xlviii.
xlix.
l.
li. INTERPLEADER
liii. Stakeholder wants court to bring parties together to decide whom they have to
pay
a. Authorization first
i. By a Plaintiff
1. Possible exposure to double or multiple liability 22a1
a. Claims must total more than value of the fund2. Proper even though
a. Claim lacks a common origin or are adverse and independent22a1A
b. P denies liability in whole or in part 22a1B
ii. As A Defendant 22a2
1. D may bring an interpleader claim by means of cross claim or counter
claim and then join any necessary claimants in the action (19,20)
b. Then Jurisdiction
i. Ipj- normal
ii. SMJ-normal
iii. VENUE 1391
lvii.
lxiii.
lxiv.
1. Territorial- Pennoyer
a. Domicile, Consent, presence, Appearance
2. Specific
a. Action arises out of contact w/ forum state
3. General
a. Goodyear-continuous and systematic so as to feel at home
4. Quasi/in rem
a. Property attach
lxix.
lxx.
lxxi. GENERAL DISCOVERY RULES
1. Pretrial conference FRCP 16- ADD 16 A- cant edit unless manifest error
2. First step is to plan how discovery will take place 26 F
a. Meet with other attorney at least 21 days before scheduling conference under rule 16,
26(f)(1)
i. 26a(1)(b)-cannot begin seeking discovery until meeting, unless authorized by
rules, stipulation, or by court order.
b. Discovery plan
i. 26f3 discover plan must state the views on
1. 26f3A- Automatic disclosures- should any changes be made in the timing,
form, or requirement
2. 26f3B- Discover scope and schedule- subjects on which discovery may be
needed, how long it will take, and if it should be limited
3. 26f3C- electronic information- issues about the disclosure of electronic
information
4. 26f3D- privilege issues- any claim about claims of privilege or protection
of trial prep
5. 26f3E-discovery limits- should changes be made to the limitations on
discovery
6. 26f3F- any other order the court should consider
3. Signed/Served and sanctions
a. 26a4-all disclosures must be signed/served
b. Broader discovery related sanctions 26G
i. Rule 11 type sanctions-a lot less harsh than 37
ii. 26g2- strike it,
4. Duty to supplement
a. 26e1-requires that attorney continuously supplement the documents they hand over
5. Court can alter the amount of depositions and interrogatories-26b2A
lxxii.
i. Party must disclose the identity of any expert witness it may use at trial-26a2A
1. Witness can only testify to what the saw or heard. Expert can testify and
give an opinion
a. Experts must prepare and sign a report containing- 26a2B
i. All the opinions witness will express and the reasons for
expressing them-2Bi
ii. Facts and data considered by the expert in forming those2Bii
iii. Exhibits the expert may use- 2Biii
iv. Qualifications of the expert and list of all publications in last
10 years- 2Biv
v. Other cases in the last 4 year expert has testified for- 2Bv
vi. How much expert will be paid- 2Bvi
b. Can depose, after report is do
c. How to define retained or specially employed-ager
i. Case by case
1. Manner in which consultation was initiated
2. Nature type and extent of information or material
provided or determined by expert in connection with
his review
3. Duration and intensity of the consultation
4. Terms of consolation if any (pay, terms, etc)
b. Limits
i. Time to disclose
1. 90 days before trial 26a2D
ii. Trial prep experts 26b4A (see below)
1. Protected trial prep experts
a. Drafts of the report 26b4B are protected under trial prep mat
b. Communications between the attorney and the expert 26b4C
2. Non-testimonial experts 26b4D
a. Is protected from interrogatories and depositions
i. Unless exception circumstances as in Trial prep
1. EX: Data no longer available otherwise
3) Pretrial Disclosures
a. What you have to do- 26a3a
i. 30 days before trial, provide other party and promptly file about evidence unless
used for impeachment solely:
1. Name, address, and telephone (if not previously provided) of witnesses
separated by
a. Those it expects to call
b. Those it will call if needed
c. Designation of which witnesss testimony will be used by
depositions and transcript of the important parts
2. All documents and exhibits
a. Those expect to use
b. Those use if need arises
b. Limiting disclosures 26a3b
i. Must limit disclosures shortly before trial (30 days before trial 26a3B).
lxxv.
lxxxiii.
lxxxiv. THIRD ASK IF ANY EXPECTIONS APPLY
lxxxvii.