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Steps/Stages in a Civil Lawsuit Determine What Claims to Bring a. P and his attorney must decide what claim or claims to bring in the action. This determined by substantive law, not civil procedure Determining Where to Sue a. In order to have a valid judgment, you must meet three requirements in addition to proper service pursuant to FRCP 4 -i. Personal Jurisdiction What State? (Constitution) ii. Subject Matter Jurisdiction Is a Federal Option Available? 1. Supplemental Jurisdiction Attaching Orphan Claims iii. Venue If a Federal Option is Available, What District? (Statute) 1. Forum Non Conveniences 2. Transfer of Venue 3. Challenging Venue b. Erie Doctrine Apply Federal or State Law? i. Judge Made Federal Law and State Law ii. Federal Rules and State Law iii. Federal Statutes Filing the Lawsuit a. Draft complaint, take it to clerks office to court where you want to sue (from analysis above), fill out the official summons form online and print it, have clerk issue the summons (sign it and put seal on it), take that complaint and serve D (below) Notice/Service of Process (FRCP 4) a. Due Process requires proper both proper contacts and notice. In order to have a valid judgment, D must be served correctly according to the constitutional standard which says service must be reasonably calculated so as to apprise the D of all claims against him and give him a chance to answer (Mullane) b. A P gives notice of a pending action when he serves the summons and a copy of the complaint on the D. These must be served on D within 120 days of filing the lawsuit. The summons commands D to answer Ps complaint within a fixed period of time. c. How Notice is Provided i. Who Serves Person must be over 18; process server, sheriff, Ps attorney. But not the P ii. Ds In State Determined by state statute; Service in hand, certified mail, etc. 1. Notice by publication is only sufficient when D cannot be found iii. Ds Out of State Accomplished by states Long Arm Statute (Discussed above) 1. Limiting Most statutes allow for service on an out of state D only in situations specifically enumerated in the statute itself. 2. Non-Limiting Service is allowed whenever the state can exercise PJ over the D consistent with Due Process iv. Service In Federal Court (FRCP 4) 1. Ds Within United States Service can be made by serving in hand, leaving process at Ds usual place of abode with someone of suitable age and discretion who also resides there, serving an agent of D authorized to receive process, or serving according to any other method authorized by either the state in which the district court sits or the state where service takes place 2. Corporations Within the United States Deliver process to an officer or a managing or general agent of the corporation d. Waiver of Service i. P can ask D to waive service. Waiver is an alternative to actual service. 1. Request for Waiver P may ask a D by mailing two copies of a waiver form (Federal Form 6), coupled with a copy of the complaint and a prepaid means of return (If state law allows electronic means, it can be done that way). The request must specify a date by which it must be returned, which cannot be less than 30 days from the date it was

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sent for Ds within the U.S. or less than 60 for Ds outside the U.S. If it is not returned within that time, there is no waiver ii. Effect of Waiver A party who returns the request waives only the requirement of formal service. The party does not waive any defenses based on lack of PJ or venue. Therefore, a D may argue lack of PJ even if it waives service 1. Incentive to Waive A D who waives receives an automatic extension of the time to answer; instead of the usual 21 days, D has 60 days following the day the request was sent in order to answer. If D is outside the U.S., he has 90 days 2. Failure to Waive D is under a duty to avoid unnecessary service costs. If D is located within the U.S., failure to return the request or unreasonably deny the waiver could result in an order requiring D to reimburse P for the costs of actual service, together with collection fees, unless there was a good reason. If D fails to waive service, D must be served in the usual means under Rule 4 (above). If D does not do this, correct notice has not been given. A judgment without correct notice is constitutionally deficient and therefore invalid Pleading the Case a. Plaintiff Pleading i. P commences the case by filing a complaint with the court and serving it on D (discussed above). 1. Three Basic Components a. Short and plain statement for SMJ b. Short and plain statement of the Ps claim (Separate paragraphs) i. Exception Fraud cases, more detail required today c. Prayer for Relief ii. Ethics 1. Signature 2. Certification 3. Sanctions iii. Involuntary and Voluntary Dismissal b. Defendants Response to Complaint i. Do Nothing/Default Judgment ii. Pre-Answer Motion Not answering the complaint yet but asking court to dismiss 1. Rule 12b Motions 2. Timing a. First Response Rule Lack of personal jurisdiction, improper venue, insufficiency of process, or insufficiency of service of process should always be in your first response (whether pre-answer motion or answer) or they are waived b. Lack of SMJ, failure to state a claim, and failure to join a party under Rule 19 are never waived iii. The Answer 1. Timing a. Default Rule 21 days within date served with summons and complaint i. Exception Waiver of Service extends time to 60 days after request for waiver was sent b. Effect of Motion D is required to answer within 14 days of the courts rule on the pre-answer motion (unless court dismisses obviously) 2. Denials and Admissions a. General Denial or Partial Denial b. Failure to deny constitutes an admission c. Lack of knowledge 3. Defenses a. Ordinary Defenses PJ, etc. can be raised here if no pre-answer motion b. Affirmative Defenses

4. Counterclaims c. Amendment of Pleadings (FRCP 15) i. A party may amend its pleadings once as a matter of course (without court permission) within: 1. 21 days after the date or serving a pre-answer motion or answer OR 2. If the pleading is one to which a responsive pleading is required (complaint, counterclaim, etc.), 21 days after service of a responsive pleading (Must amend before the responsive pleading is served back, could be less than 21 days) 3. In all other cases, a party may amend its pleading only with the opposing partys written consent 4. If written consent fails, the court should freely give leave when justice requires it. It is only denied if other party can show prejudice or this party was negligent or careless and that is why he is looking for amends ii. State of Limitations and Relation Back d. Joinder i. Joinder of Claims by P 1. Can usually join but remember court must always have supplemental jurisdiction a. Supplemental jurisdiction is not proper for joinder ii. Joinder of Claims by D Counterclaims 1. Permissive Counterclaims 2. Compulsory Counterclaims iii. Joinder of Parties by P 1. They assert any right to relief jointly OR Severally OR in the Alternative WITH respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences and any question of law or fact common to all Ps will arise in the action iv. Joinder of Parties by D Third Party Claims