FRCP DEVICES REQUIREMENTS/ CASES DEFINITIONS/NOTES

RULE STANDARDS

BEGINNING OF A CASE
3 Commencing an Action is commenced by filing a complaint in court
action
(c) Service → must be served w/ copy of complaint, by someone Test for giving -Don’t require actual notice, just reasonably calculated
4 Service of Process who’s at least 18+ notice: that notice will reach D under circumstances
Rule/ Giving (d) Waiving Service A. Notice MUST be - Service must include copy of summons and what P is
Notice (e) Serving personal delivery on natural persons in US reasonable under seeking relief for
-- (2)(B) serving person by leaving copy of summons & circum. but not - Summons will not be issued until complaint has been
complaint at dwelling actual (Mullane v. filed with the court & the lawsuit begins
(f) Seving person in foreign country Central Hanover
(h) Serving Corporations, partnership, or association → allows Bank & Trust Co.)
agent to be authorized to receive notice on behalf of D B. If learn that
reasonably
calculated didn’t
work, must try
something else
that’s reasonable
(Jones v. Flowers)
C. If A & B don’t
work, then try
something that’s not
the worst (like
publication - ONLY
WHEN A&B FAIL)

- Mennonite
Board of
Missions v.
Adams
- Tulsa
Professional
Collection
Services, Inc. v.
Pope
- Green v.
Lindsey
- Dunsenbery v.
US
- National
Equipment
Rental v.
 Szukhent

PLEADINGS - ANSWERS, MOTIONS, AFFIRMATIVE DEFENSES

(a) allowed pleadings
7 Pleadings & (b) motions must state w/particularity & set forth relief
motions must sign as per Rule 11
(a)(2) P needs to provide “short and plain statement of the claim - Dioguardi v. - Rule allows P to not plead evidence or facts, just needs
showing the pleader is entitled to relief” and give D notice for Durning: (8)(a)(2) to plead his claims (how and when)
8a General Rules of why P is suing him - Conley: standard - P’s complaint needs to give fair notice to D for what P is
Pleading – claims that P claim needs alleging relief for
for relief must to give D notice & - 8(a): P complaint must have:
contain complaint should be Statement of SMJ, Allegations showing SMJ, Short &
dismissed if it’s plain statement of the claim
beyond doubt that P
can prove no set of
facts to support
claim of relief.
- Iqbal & Twombly:
P ’s claim must state
enough facts that
relief is plausible on
its face (and not
conclusionary)
1. D must state in short and plain statements, its defenses to each - Failure to deny = admission
D must respond of P claims - If you had insufficient info to deny, treated as denial
8b to the complaint 2. admit or deny P claims (all or individual) 8(b)(5)
-D admits allegations of complaint, but challenges P’s legal right Ingraham v. United -Res judicata is affirmative defense, must be in answer
to bring action by suggesting reason why relief isn’t available States 8(c) - Must plead affirmative defenses in answer or else
8c Affirmative -8(c)When D does not bring his affirmative defense in a timely they’re waived
Defenses fashion, he waives his right to plead it
(1) simple & concise
(2) can have alternate claims or defenses regardless of
8e How to plead consistency
 9(b) Pleading Special Heightened Pleading Requirements-- goes beyond detail
matters required under Twiqbal (FOR FRAUD, MISTAKE, OR
SPECIAL DAMAGES)

DEFENSES, OBJECTIONS, DISMISSALS

(a)(1)(A)(i) Gives D 21 days from the date D was served - if D motions for SJ & SJ is overruled, D can still proceed
complaint to respond by a motion or answer - if demurrer is sustained, P can amend complaint
12(a) Defenses &
Objections
- (b): gives 7 defenses which D can assert in motion to dismiss - (b)(1) SMJ can NEVER be waived & can be raised at
12(b) How to present or in his answer. any time
defenses - (b)(7) motion to dismiss for failure to join an indispensable - (b)(2), (b)(3), (b)(5) - must be put in first R12 response
party or else they are waived
- (b)(6) & (b)(7) may be raised for the first time anytime
through trial
- D can file an affirmative defense in his answer Conley v. Gibson:
Dismiss for - D is not disputing facts, D is saying that even if these facts are Follows that
12(b)(6 failure to state a true, P still loses complaint shouldn’t
) claim be dismissed for
failure to state claim
but claim can be
dismissed if it’s
beyond doubt that P
can prove no set of
facts to support his
claim of relief.
- When D attempts to introduce material outside the pleadings
(written or oral evidence not included in the complaint)
12(d) Speaking -Under 12(d), a pleading challenge is treated as a motion for
Demurrer summary judgement when outside matter is introduced

- method of attacking substantive sufficiency of opposing American Nurses’ v.

party’s pleading after all pleadings are completed (not Illinois: A
12(e) Motion for more generally used) complaint cannot be
definite statement - D’s motion is not a motion to dismiss, but for P to clarify his dismissed when it
complaint has invalid and
valid claims or
some
incomplete/unconvi
ncing evidence (D
should move for
more definite
statement)
 - allows court by sua sponte, OR by motion by either P or D
to strike an
1. Insufficient defense OR
12(f) Motion to Strike 2. Immaterial, impertinent, scandalous matter from pleading.
- For P to strike, defense must be obviously false and unrelated
to the subject matter of the action
JOINDER - JOINDER OF PARTIES & CLAIMS, COUNTER-,CROSSCLAIMS, IMPLEADER, INTERPLEADER
Counterclaim: one party on one side of the v sues a party on - U.S. v. Heyward- - If you have compulsory counterclaim, you MUST bring
the other side of the v (D makes against P) Robinson it or else you miss the opportunity; if you have a
13 Counterclaims & - (a)(1)(a) Compulsory - D MUST bring counterclaim that: (a) - LASA v. Alexander permissive cc, you have the option to bring it if you
Crossclaims is relating to or arising out of the same series of occurrences or (13(h)) want.
transaction BUT; (b) If D counterclaim brings another party that - Danner v. Anskis - Crossclaim must be related to the claim or counterclaim
the court doesn’t have jurisdiction over, then D is not obligated (13(g)) - counterclaims DON’T need to relate to T/O, but if
to bring counterclaim - Ryder v. Jefferson related=compulsory
-(b) Permissive - anything that’s not compulsory→ a claim Hotel - Each party has opportunities (permissive counterclaims)
brought by D against P that doesn’t rise out of same - Bank of California and obligations (compulsory counterclaims)
transaction/occurrence as P’s claim. Don’t need to be brought National Ass v.
Superior Court
4 part test to decide when characterizing counterclaim as - Shields v. Barrow
compulsory or permissive: - Provident
(1) Are the issues of fact & law raised by claim & counterclaim Tradesmen Bank &
largely the same? Trust Co. v.
(2) Would res judicata bar a subsequent suit on D’s claim absent Patterson
the compulsory cc rule?
(3) Will substantially the same evidence support or refute P’s
claim as well as D’s cc?
4) Is there any logical relation btwn claim & counterclaim?

(G) → Crossclaim: one party on one side of the v sues a party

on the same side of the v
- For P to bring cross-claim against third-party P, D first needs
to counterclaim against P which brings third-party P in suit. P’s
cross-claim against third-party P needs to be related to
counterclaim D brought NOT related to P claim against D
- MUST arise from same T/O as current case
- Crossclaims are never compulsory
- Co-party where P joined multiple P’s/D’s under R20

(h) Ds can counterclaim against P1 which adds P2 to

counterclaim, allows P1 to crossc P2
 ● Any time after start of an action, D may use to bring any third - Jeub v. B/G Foods,
party into case who may be responsible for least part of P - Too. v. Kohl’s
14 Impleader injury.
● D must file w/in 10 d of service of answer
● Added third-party can bring counterclaim against P, or assert
all of original claims or defenses
● Impleader claim needs to arise out of original claim.
Permissive joinder – NEED BOTH (1) you can join anyone M.K. Tenet
whose claims arise out of same transaction or occurrence, (2) - parties can join as long as some claim arises under
can ONLY join them if there’s a common Q tying all parties transaction/occurrence
together - Crossclaim must be related to the claim or counterclaim
- Each party has opportunities (permissive counterclaims-
20 Joinder of Parties Proper Parties: not related to suit) and obligations (compulsory
- Rule 20(a): Allows P to join multiple P’s or D’s but doesn’t counterclaims- related)
have to do this; only if they WANT to
- 20(a)(1) P’s may join together if claims arise from same T/O
& claims raise at least one common question
- 20(a)(2) D’s may join together if claims arise from same T/O
& claims raise at least one common question
3 Q’s to think about: Indispensable party when:
(1) Is there someone out there who should be joined? Is this - Wouldn’t have another chance to be heard & must be
19 Mandatory person necessary under 19a? joined
Joinder of Parties Rule 19(a) → need to join party if (if feasible): - Judgement would be prejudice to absentee or available
- Without nonparty, court cannot accord complete relief among parties
parties (a)(1)(a) - Prejudice would be reduced/avoided if party was brought
- Nonparty’s interests may be harmed if she is not joined - Judgment is not adequate w/o absentee
(a)(1)(b)(1)
- Nonparty’s interests may subject D to multiple or consistent Necessary party when:
obligations (a)(1)(b)(2) - Parties that are normally interested in suit & should be
(2) If party is necessary, is joinder feasible? parties, but interests are separate from the rest
- Feasible to join party under 19a only if court can have PJ over - Parties who may be affected by judgment, but their
him, & joining him won’t destroy diversity (SMJ) interests are so separate from rest that they wont be
- Need SMJ & PJ affected
(3) If court should join him b/c necessary but can’t, what can
they do? 19(b)
- Court has to decide→ can they proceed without him OR is he
absolutely essential and need to dismiss case?
- 12b7 motion to dismiss for failure to join an indispensable
party
- 19b (when not feasible) is an attempt to avoid dismissals under
12b7 → judge must determine if there’s anything he can do to
move forward & at least give relief to people already involved
 - Claim joinder by P: Rule 18(a)→ P can assert any claims she
has – don’t have to be related to transaction/ occurrence
18 Joinder of Claims Always check for SMJ

●Allows stranger in lawsuit to interject himself into the action
●(a) and (b) require the application to intervene be timely
24 Intervention
- Intervention test (Smuck): intervention is appropriate when:
o Moving party has interest in outcome of case
o Outcome may impair party’s ability to protect interests if it
doesn’t intervene
o Party is not otherwise adequately represented in the case
Smuck v. Hobson ●Treats intervention as permissive joinder device so that
Martin v. Wilks outside litigation has option of joining lawsuit or not
●Intervention after judgment will be allowed only in
unique situations → assumption is that allowing
intervention after judgment will either (1) prejudice the
rights of the existing parties to the litigation or (2)
substantially interfere w/ the orderly process of the court

AMENDMENTS
Amendment: when you ask to change something in the original Beeck v. Aquaslide
petition Moore v. Moore
- First ask whether 15(a) applies: (1) P has right to amend within Krupski v. Costa
21 days after D serves first rule 12 response, (2) D has right to Crociere S.p.A.
amend if he serves answer but forgets affirmative defense if
within 21 days (3) if after 21 days, need to ask court for
permission to amend
15(a)(1): P can amend: (A) within 21 days or (B) amend with
consent from opposing party or from grant of court t
- Parties can amend complaints at any point in litigation
before judgment.
- 15(a) permits amendment w/o consent of court. 15(b)
permits amendment of pleadings both during and after
trial
- Safe Harbor→ party has a certain amount of time to
withdraw motion/action to prevent sanctions on him

15(a)(2): May want to amend during discovery. Can amend if:

● Expressed consent → you raise issue during trial and other
15 Amendments side consents to arguing it
●Implied consent → offer evidence and other side doesn’t
oppose/object

15(b): after trial, party objects that evidence is not within issues
raised
●If nonmoving party doesn’t object then evidence comes in
● if nonmoving party objects, evidence is kept out

15(c): allowed to amend mistake if it relates to original

complaint ( statute of limitations is avoided)
● Need good faith basis mistake

15(d) – Supplemental Pleadings

- Where party wants to add something that happened after case
was filed
DISMISSALS/JUDGMENTS
 - Allows either party to motion for SJ on ground that factual Cross v. US - Unlike Rule 12(b) motion, motion for SJ allows parties
issue is not in dispute, or theres enough facts to grant SJ Celotex. v. Catrett to look behind allegations & see if there’s evidence
- Genuine dispute of material fact→ if jury could return a Scott v. Harris
verdict for nonmoving party Matushita Electric - Material Fact→ something that can affect the outcome of
56 Summary v. Zenith Radio case (look at substantive law b/c says what need to
Judgment 56(1): If D wants SJ, D needs to either: Corp. establish/ discovery to show why material fact is NOT in
o 1. Provide affirmative evidence that negates elements of P’s dispute)
claim & P needs to respond w/ evidence of genuine dispute of
material fact - Celotex→ nonmoving party bears burden of proving his
o 2. Prove it motion→ D needs to show P has no elements/claims, and D can make prove it motion
evidence/absence of evidence to support P elements

- EITHER PARTY CAN MOTION FOR SUMMARY

JUDGMENT AT ANY STAGE
- USUALLY NOT GRANTED UNTIL AFTER
DISCOVERY
- Allows any party to voluntary dismissal himself from case
before suit begins if it: doesn’t affect P’s legal rights, doesn’t
41 Voluntary prejudice any party, & puts the parties in the positions they were
Dismissal in before the suit began

- Voluntary dismissal should be granted unless D will suffer

clear legal prejudice as a result (McCants v. Ford Motor Co.) →

- When D has incurred expenses, dismissal is not warranted

unless P reimburses D for portion of expense.

- R41(a)(1) allows dismissal without court order if done before

D answers or moves for SJ
- Rule 41(b)--Dismissal for Failure to Prosecute→ Court can
dismiss P suit if P does not proceed to trial with “due
diligence”/for failure to prosecute
- Rule 55(b) → Default judgment is only entered against D Coulas v. Smith
when D fails to plead or defend the claim against him
- Rule 54(c) – P may recover the amount he prayed for in
55 Default Judgment default judgment.
- Special type of DJ can be imposed on party who appeared &
contested matters at issue but willfully violated rules of
procedure/disobeyed an order of court.
(a) Moving party needs to prove that reasonable jury would not Galloway v. US If D doesn’t make a motion for 50(a), then he can’t make
Judgment As A be able to find for other party Neely v. Martin motion for 50(b) later.
50 Matter of Law (b) Judgment notwithstanding the verdict - after jury reaches Denman v. Spain
(JMOL) verdict, judge can take case away if the judgement should have Kircher v. Atchison SEE PAGE 37/38
been granted as a matter of law Reeves v. Sanderson
 Rule 59(b)→ allows party to move for new trial; new trial - Ginsberg v. - Once a new trial is granted, it cannot be appealed and
granted to redress prejudicial errors if jury verdict is "against the Williams the parties must pay the costs of the new trial
59/61 Challenge For A weight of the evidence. - Magnani v. Trogi - D can make 59 motion even if he doesn’t make 50(a)
New Trial - Robb v. Hickey motion, but most D make both.
- Main reasons judge would grant a new trial: Inconsistencies - Kramer v. Kister - ·Only question if there should be new trial when errors
that happened with the jury/in jury room, or judge made a legal - Duk v. MGM would affect outcome of case, but would not lead to
error that affected the outcome (ex: flawed legal foundation that - Aetna Casualty v. reversal on appeal
decision is based on), verdict is against the great weight of the Yeatts - trial judge has great discretion→ factors to determine if
evidence - Dryer v. judge exercised reasonable discretion in granting or
MacDougal refusing a new trial: weight of evidence, character and
credibility of the witnesses, and the right and justice of the
case
- Reopens judgement that we thought was final, and allows - Briones v. Riviera
relief for party - Title v. US
- 60(a) court may correct clerical mistake, error in printing, - Hazel-Atlas v.
parties, or judge may error Hatford Empire Co.
Relief from - American Civil
60 Judgment or 60(b)(1): Excusable Neglect Liberties Union v.
Order -doesn’t apply for grossly negligent mistakes!! Dep’t of Defense
-attorney carelessly writes down wrong date for case

60(b)(2): Newly discovered evidence that could have NOT been

discovered during case→ has to tell us something new about
facts at the time of trial

60(c)(1): motion needs to be made in timely fashion

4 factors to consider if negligent was “excusable” (Briones):

1. Danger of prejudice it would have on opposing party
2. Length of delay and its potential impact on proceedings
3. Reason for delay
4. If the moving party acted in good faith
- Provisional remedy: form of relief entered before a final - Purpose is to preserve status quo until case is finally
Provisional judgment & doesn’t resolve merits of the dispute decided
64 Remedies - federal court may use provisional remedies as long as not - Includes: preliminary injunctions, garnishment,
inconsistent w/ other federal rules or statutes temporary restraining orders, attachment, & receiverships.
- Application of provisional remedies is restrained by the
Due Process Clause

APPEALS
 - In multiple claim action or multiple parties, rule permits party
Cases Involving to bring appeal for one or more, but not all claims, and for court
54b Multiple Claims to make final decisions on those individual claims.
- court can decide one claim before another if not related
- It resolves a claim/ final decision on a claim, NOT on suit
- court has discretion to decide when there’s no just reason for
delay, how many claims, if there’s a final decision on those
claims, and the timing
- Sears v. Mackey - Finality Doctrine: courts CAN’T review a matter
- Will v. Hallock before a district court has issued a final decision, unless it
falls within collateral order exception.
- Collateral Order Doctrine: allows appellate review of
district court rulings that are separable from merits of the
case, final, urgent, and involve an important, unsettled
question of law.

SUBJECT MATTER Jx

- District court shall have original Jx of actions arising under - Osborn v. Bank of - Use for SMJ analysis
1331 federal law (Constitution, laws, or treaties of the US) US - If state statute is important federal issue=AUJ (Grable)
- Have AUJ when have claims that: - Louisville & - Meet Mottley’s well pleaded complaint rule if an
o Are created by state law, but have an issue that needs to be National Ro. Co. v. essential element of P claim requires a federal law→ must
Arising resolved by federal law; OR Mottley determine where COA rises solely from P’s complaint
Under/Federal o Federal statute created the COA - T.B. Harms Co. v. NOT D future defenses
Question Jx Eliscu - Shoshone Mining Co. v. Rutter: Claims didn’t arise
If no federal created COA, look if there’s (1) essential - Merrell Dow v. from US law but arises from local customs/rules of
element to cause of action, (2) contested federal question, (3) Thompson miners, so nothing to do w/ federal law.
federal interest must be substantial, (4) Congressionally - Grable v. Darue - Homles’ Creation Test→ suit arises under federal law
approved division of labor [vertical federalism] (Grable) - Empire v. when federal statute creates a cause of action (TB Harms)
McVeigh
- Gunn v. Minton
(failed Grable)
- Shoshone Mining
- Every person on left side of v has to be from a different state - AFA Tours v.
than everyone on the right & has to meet A-I-C Whitchurch
1332 Diversity Jx - Freeland v.
Liberty Mutual Fire
Insurance

- Gets additionally claims into federal court
- Arises when case is already in federal court b/c P has at least
1 claim that has federal juris. (diversity or arising under/FQ)
1367 Supplemental Jx BUT other claims doesn’t have federal jur. (non-federal/non-
diversity claims) and want to add them to federal court case!!
- Can non-federal claims join the federal claims in federal court?
● Need at least one claim to have federal Jx, then need to see
if other claims are state or federal
● Court won’t give SJ if state claims are “substantially
predominate.” Court can dismiss & case can be heard in state
court.
- USMW v. Gibbs - United States Mine Workers of America v. Gibbs: State
- Owen v. Kroger & federal law claims must arise from a common nucleus
of operative facts (claims have the kind of relationship
that P would bring them together in a suit
1367 analysis:
- 1367(a):
o Court needs to have original Jx; if court has original Jx
over a single claim, it has original Jx over a civil action.
oGrant of supplemental Jx extents to claims involving
joinder or intervention of additional parties
o Under this statute, court has original Jx over the civil
 ● For additional claims that don’t have federal juris. (from actions compromising the claims for which there is no Jx
any party), need to ensure each claim has federal subject defect
matter jurisdiction!
- Pendent and Ancillary Jurisdiction (pg. 12/13) - 1367(b):
o Need CNOF, amount-in-controversy, & diversity Jx.
o Exclusions by (b) → if claim arises under then no Jx
…
- R14: third-party practice
- R19: required joinder of parties
- R20: permissive joinder of parties
- R24: intervention

- Only applies to P, not D → if D brings third-party

joinder, third-party joinder doesn’t become a P, but
becomes third-party defendant brought by D.
- If D brings in third-party D, he stays as third-party D
- If P amends & adds a party which destroys diversity Jx,
then it doesn’t pass 1367(b)
- Withholds supplemental Jx in diversity cases over claims
by Ps joined under R19.
- Removal from state court to federal court - Shamrock Oil v.
Sheets
-Allows a suit filed in state court to be transferred to federal Davis v. City of
court → Only D has right to removal Shreveport Police
1441 Removal Jx Dept.
- requirement is the district court would have had original
jurisdiction over the case if it initially was filed in federal
court

- D needs to motion to remove with in 30 days of D receiving

complaint

- Requirement is that district court would have had original

jurisdiction over the case if it initially was filed in federal court

- D can’t remove case if D is citizen of state where case is in

- Even if state court doesn’t have SMJ, state court can allow
removal of case to federal court

VENUE
 - 1391: Venue generally - Bates v. C & S - To determine where venue is proper: “substantial
- 1391(b)(1): as long as all defendants are from same state, can Adjusters contacts”, “weight of contacts,” place of
sue in any district of that state - M/S Bremen v. injury/performance, where D resides, or even to
- 1391(b)(2): main state district where substantial part of Zapata Off-Shore boundaries of personal Jx under state law.
1391 Venue Generally property or events occurred
- 1391(b)(3): only use if (1) and (2) don’t work
- If 1391(b)(1) and 1391(b)(2) don’t work, the use 1391(b)(3)
and ask yourself if there would be personal jurisdiction

- Transfer b/w different federal districts and either party
can bring motion (case needs to be in fed ct to apply)
- Court can transfer for convenience of parties and witnesses, or
1404 Forum Non in the interest of justice, ONLY to a district where the case
Conveniens/ might have been brought (where court has jurisdiction) or to any
Transfer district that all parties consent to
- District Court to transfer an action to another district depends
on where the plaintiff might have brought the action
- Need FNC when want to transfer case out of the state court
you’re in and into a foreign court (ex: a different state’s court)
- Don’t need FNC to transfer case from one court in state to
another court in same state
- Court can use FNC when there’s no statute or statute doesn’t
apply
- Hoffman v. Blaski - Hoffman: Under 1404(a), District Court can transfer an
- Piper Aircraft Co action to another district if P might have brought the
v. Reyno action there
- Van Dusen v. - Piper: Court can dismiss case if transfer court has
Barrack unfavorable law that is inadequate or unsatisfactory that
it’s no remedy at all to transfer the case.
- Van Dusen:under §1404, the transferee court must apply
the same laws that would have applied in the judicial
district where it was originally filed

- Removal, transfer, and Rule 19 limit plaintiff’s autonomy

1406 When case was - Court can either transfer or dismiss the case
brought in - Court needs to see how its action will affect P ability to
improper venue recover
- Transfer→ save P recovery
- Dismiss→ if P acted fraudulently, or case can’t be heard in
district P filed in

SEVENTH AMENDMENT - RIGHT TO A JURY TRIAL

 - Historical test (not really useful anymore → was the claim
tried to a jury or a court of equity in 1791 common law?
● No right to jury trial if historically issue would’ve been
7th tried in court of equity or tried w/o jury
Amend Right to Jury
ment Trial - Equity provides remedies when law does not (ex: injunctions,
restitution, rescission, and reformation)-- no jury trial
- Legal relief v. equitable relief:
● $$$ (compensatory) is usually legal relief
- P or D can demand a jury trial. P can demand in his complaint,
and D can in his answer
- Beacon Theaters, - Beacon: When have legal & equitable issues in same
Inc. v. Westover trial, legal issues must first be tried & resolved by jury and
- Dairy Queen v. then equitable issues can be resolved by judge
Wood - Wood: character of the claim determines whether an
- Ross v. Bernhard issue is legal or equitable
- Curtis v. Loether - Ross: Equitable claims alone have no right to jury trial,
- Tull v. US except if in order to get equitable relief, need to show that
had right to legal claim
- Curtis: Seventh Amendment entitles either party to
demand jury trial in an action for damages or injunctive
relief
- Tull: To determine if entitled to jury trial, (1) need to see
how courts historically treated this type of action, before
courts of law and equity merged, (2) examine the remedy
sought and determine if its legal or equity in nature