CIVIL PROCEDURE



CIVIL PROCEDURE

Russell

Fall 2002

I. DUE PROCESS

a. Constitutional Minimum:

i. Requirements have been established to assure that D is properly notified before judgment may be taken against him/her.

ii. The government cannot deprive person of life, liberty or property without the notice of action against him and an opportunity to be heard.

iii. 5th and 14th amendments

iv. Full Faith and Credit Clause (Art IV Sec 1) - only applies to cts of one state enforcing another state's decision. Now also applies federally w/ a federal statute.

 ****If you have a valid and binding judgment in state A it must be give the same effect in state B that it would have in state A

 ****A judgment w/o jurisdiction is VOID in every state

Matthews v. Eldrige

• Develops in administrative hearing process – now used by Supreme Court to determine out what process is due when an individual is seeking recourse from the government:

• Test:

o Private interests at stake

o Government decisions

o Risk or error or erroneous decision making

Walters v. National Association of Radiation Survivors

• Veterans brought action challenging the constitutionality of $10 max fee that may be paid to an attorney or agent who represents a veteran before the board.

• Supreme Court held that this was constitutional on its face because representation was not required and it would not preclude an “as applied” Constitutional challenge.

b. Service:

i. Service is the means by which the plaintiff notifies the defendant of its impending action. Dictated by FRCP 4.

1. Must be “reasonably calculated notice” (actual notice is not necessary)

2. D must be afforded an “opportunity to present objections”

3. Even if D will clearly not win, service must be made in order to afford D a chance to negotiate the settlement.

ii. 4(a) – Form: Summons shall be signed by the clerk, bear the seal of the court, identify the court and the parties, be directed to the D, and state the name and address of the p’s attorney, or if not represented, of the P. It shall also state the time within which the D must appear and defend, and notify the D that failure to do so will result in a judgment by default against the D for the relief demanded in the complaint.

iii. 4(b) – Issuance: P must present summons to the clerk for signature and seal.

iv. 4(c)- Service by complaint; by whom made: Summons shall be served together with a copy of the complaint. Service may be effected by any person who is at least 18 years of age. It can also be effected by a US state marshal, deputy US marshal, or other person appointed by the court.

v. 4(d) – Waiver of Service: D can waive service of summons and this does not mean that he waives any objection to the venue or the jurisdiction of the court over the person of the defendant. If you waive – there are other options, mail, etc.

vi. 4(e) – Service upon individuals within a Judicial District of the United States: By delivering a copy of the summons and complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and complaint to an agent authorized by appointment or law to receive service of process.

vii. 4(k) – Territorial Limits of Effective Service: Service is effective to establish jurisdiction over a defendant who, 1) could be subjected to the jurisdiction of a court of general jurisdiction in the state where the district court is located, or 2) who is a party joined under Rule 14 or 19 and is served in a judicial district of the US not more than 100 miles from which the summons issues, or 3) who is subject to the federal interpleader jurisdiction, or 4) when authorized by a statute of the United States.

c. Notice:

i. In Hand service – the best and surest method

ii. Substituted Service – delivery to a person of suitable age and discretion residing at the dwelling place of D or to D’s appointed agent. FRCP 4(c)(2). This person must be over 18, of suitable disgression and residing in the dwelling house.

iii. Service by Mail – Registered or certified is best, first class is ok for class actions

iv. Posted to door – May violate constitutional due process right to notice

v. Notice by publication – last resort

vi. Infants & Incompetents can not be served

Green v. Lindsay – Adequacy of Notice:

• Appellees lived in a housing project where it is known that notices get ripped off the doors, yet notice was put on their door and because they did not get it they defaulted and did not appear so they only found out about the claim when the final eviction papers appeared.

• Key – posting is not always sufficient to show due process especially when it is known that posting are usually removed and it is unlikely that D ever received them.

National Development Co. v. Triad Holding Corp. & Adnan Khashoggi:

• D is an international resident and when P was trying to serve him they left the papers with his maid at the NY apartment. She also testified that he was in NY at the time. D did not appear in court and a default judgment was filed against him.

• Actual notice of the service is not enough if it is not correct notification.

Mullane v. Central Hanover Bank & Trust Co – that if D was living in NY at the time it was the most likely method of assuring that he would get the summons and complaint – it was reasonably calculated to provide him with actual notice.

Mid-continent Wood Products v. Harris:

• Developed their own test (actual notice, due diligence, and fairness)to get around the strictness of Rule 4 with regard to when D is aware of charges against him but has been able to get out of a default judgment because of a clerical error and that the service had been delivered to the wrong address and he had not been correctly served under Rule 4.

• Key – you can not get around Rule 4. You have all the rights to due process even if it’s over something as trivial as a clerical error.

d. Fraudulent Service:

1. People can not be brought into the jurisdiction by fraud

2. service induced by fraud is acceptable

Wyman v. Newhouse

• D and P had been involved in a relationship – D received a telegram from P saying her mom was dying and she was leaving the US for good and needed to see him one more time. He agreed to meet her in Florida and when he got off the plane he was served with paper. When he didn’t show up a default judgment was entered against him.

• A judgment that is procured fraudulently is null and void – because the service of the papers was fraudulent it made the entire case void.

e. Immunity from Service:

1. people making special appearances or voluntary appearances to dispute claims/jurisdiction in an unrelated case are immune UNLESS:

a. a new case directly results out of the case including appearance

b. the new case involves the same subject matter

c. The case is a criminal case.

II. JURISDICTION

a. Introductory notes:

i. The authority of the State’s courts to have power over the people and property contained within their boundaries

ii. Personal Jurisdiction: Jurisdiction over the person or any possible individual who could be the defendant of a lawsuit

iii. Subject Matter Jurisdiction: The subject matter of the dispute and whether it can be heard in a particular court.

iv. Jurisdiction differs from service of process because finding the person and serving them is invalid if the court does not have jurisdiction over the person being served.

b. Three Types of Jurisdiction:

i. In Personam:

1. Forum state has jurisdiction over the defendants person

2. judgment in forum state is entitled to full faith and credit in other states.

ii. In Rem:

1. When court has the power over defendants property or statue

2. The court has the power to adjudicate the rights of all persons in the world with respect to a particular item of property.

iii. Quasi In Rem:

1. Power of the court to attach or garnish property to gain jurisdiction over the defendant. This requires the minimum contacts test of International Shoe.

2. Judgment effects only the property seized.

3. Allows the court to determine whether particular individuals own specific property within the court’s control AND can permit the court to adjudicate disputes other than ownership based on the presence of the defendant’s property in the forum.

c. Statutory limitation on in personam jurisdiction:

i. Where D is present in the forum state and personally served.

ii. D is domiciled in the forum state

iii. D consents to jurisdiction

iv. D has committee acts bringing him within the forum state’s long-arm statute.

d. Traditional Test:

i. Presence in Forum State

ii. Defendant must be served with notice of lawsuit against him within the forum state

1. Even if D is only there for a few hours

2. Service on a plane flying over the state is valid

Pennoyer v. Neff

• Mitchell sues Neff in Oregon for attorney’s fees, Neff does not appear – d/j and property sold. Mitchell buys the property and assigns it to Pennoyer. Neff comes back and sues Pennoyer for title. D/j had been null and void – there was no power of quasi in rem – Neff wins because he had never received service of process so everything subsequent to Mitchell v. Neff was invalid.

• Shows that certain basic due processes need to be met before the courts of a state can force an out-of-state defendant to come in. This means that Neff had to be sued within the borders of OR

e. Modern Test:

i. Defendant must have minimum contacts, domicile or consent to be sued in that state.

ii. Suit must not offend notions of “Fair play and substantial justice”

f. MINIMUM CONTACTS:

International Shoe v. Washington:

• They were a business incorporated in Delaware and with their main address in St. Louis. WA wants them to pay into the unemployment scheme in WA and they claim that they don’t have any business there.

• Key – the conduct of the corporation’s salesmen in soliciting business in the forum state was sufficient minimum contacts that they could be sued with that state. This suit did not offend notions of fair play and substantial justice .

Test: "In order to subject a D to a judgment in personam...he must have certain minimum contacts w/ the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice."

i. Constitutional elaborations

a. Activities must be systematic and continuous

• If D engages in systematic and continuous activity in the forum state, the court will find this activity a sufficient basis for exercising in personam jurisdiction for any cause of action against the defendant, whether the cause of action arose from the in-state activity or from activity outside the state – IE the court will have GENERAL JURISDICTION.

Helicopteros Nationales de Columbia, S.A. v. Hall

• Wrongful death action institute by TX state court against Columbia operation.

• Supreme Court held that their one trip to Texas for the purpose of negotiating transportation services contracts was not sufficient to constitute continuous business within the state and to assert in personam jurisdiction over the corporation

b. Activities must be purposely directed toward the forum state:

• if D’s in-state activity is less than systematic or continuous, in personam jurisdiction over the defendant will be proper for causes of action arising from that act when the activities are purposely directed toward the forum state. (BK v. Rudzewicz)

Asahi Metal Industry Co. v. Superior Court

• Incident with Honda motorcycle in Solano County and the claim ended up being between two Japanese manufacturers

• Court held that exercise of jurisdiction by a California court over two foreign entities would be unreasonably and unfair and that jurisdiction can not be exercised.

c. D must purposely avail himself of the privileges of the forum state

• Even if D’s activities are performed outside the state, D will still be subject to in personam jurisdiction for consequences in the state where he knows or reasonably anticipates that his activities could give rise to the cause of action in that forum.

Hanson v. Denkla:

• There has to be an intention to benefit from the business from that state to show that minimum contacts has been met.

d. Possibility of litigation must be foreseeable

Keeton v. Hustler Magazine:

• A national mag. is probably subject to in personam jurisdiction for libel actions in every state where the mag. is sold.

The publishers may reasonably anticipate causing injury in every state where the mag. is sold and then can reasonably anticipate being haled into court in each state

World-Wide VW v. Woodson

• The car is purchased in NY and then is in an accident in Oklahoma.

• WWVW did not purposely avail themselves of the benefits of OK laws, forcing them to defend a suit in OK would be against notions of fair play and substantial justice – none of the acts or omissions took place in OK and the result of the relationship between WWVW and OK is the result of a unilateral activity and this does not satisfy the requirement of contact within the forum state.

o There is no way that a car company in NY could anticipate a possible litigation from a lawsuit in OK when they have no connection with that state.

e. There must be a connection between litigation, Defendant and forum state

i. Mere presence of property is not enough unless D had necessary “minimum contacts” under Shaeffer v. Heitner

Shaeffer v. Heitner:

• The Greyhound case where Heitner sued all D’s who were shareholders in Greyhound through an attempt to sequester their Delaware property (shares in the Delaware incorporated Company)

• Key – the court looked at this case to show the limits of quasi in rem jurisdiction and that even though D may have “property” in the state that you need to look at the nature of the quasi in rem jurisdiction and see if it is consistent with notions of fair play and substantial justice.

g. DOMICILE

Most states grant their court in personam jurisdiction over persons who are domiciliaries of the state even when the defendant is not physically within the state when they are sued.

i. Def: Domicile refers to the place where a person maintains their permanent home. Where a person has legal capacity, her domicile is the place she has chosen through presence, coupled with the intention to make that place her home. If a person lacks capacity then the domicile is determined by law

ii. You can only have one domicile at a time

iii. Citizenship: A US citizen even if living abroad is subject to personal jurisdiction in the US.

h. CONESNT

Virtually every state provides for in personam jurisdiction through the defendant’s consent. Such consent may be express or implied or through the making of a general appearance.

i. Can be through filing an action

1. Counterclaim can be filed against original P and he cannot subsequently dismiss the action.

ii. Advance Consent – a person can contract to give advance consent to jurisdiction in the event a suit is brought against him.

iii. Voluntary appearance in Court – ie by contesting the case without challenging personal jurisdiction. If you don’t raise jurisdiction immediately as an objection then you are deemed to have consented and waive your rights on that issue.

i. Forum Selection Clauses: another way to automatically get personal jurisdiction is if you can say that even though D has no connection with the state – they consented to be sued in the state or had waived their rights to dispute it.

Shute v. Carnival Cruise Lines:

• P purchased her ticket in WA but fell on D’s ship while traveling and D’s principle place of business is FL and all tickets include a forum selection clause that says all claims must be brought in FL.

• The court held that this forum selection clause was valid for several reasons including:

o The cruise line has a special interest in limiting the forum that it can be sued in

o Clauses like this limit confusion about where suits should be brought

o Passengers who buy these tickets benefit from the reduced fairs reflecting the money the company saves through limiting the suit forum

o Here there was no more reason to try the suit in WA than in FL – the incident happened in neither state.

National Equipment Rental v. Szukhent:

• D obtained farm equipment from D and in the lease it stipulated that Florence Weinberg ( a resident of NY) would serve as the agent for accepting service for D within the state of NY. When D failed to make payments on the equipment the summons was sent to Weinberg who then forwarded the summons and complaint to D along with papers saying she had signed as their agent

• Court is fine with this set up and says that this process was acceptable and sufficient for due process to be met.

III. Long Arm Statutes

a. Once “minimum contacts” are established the State must still have legislation authorizing the court to accept such jurisdiction

b. JURISDICTION MAY BE BASED ON CITIZENSHIP, PROPERTY OWNERSHIP, OR TORTIOUS ACTS IN THE FORUM STATE.

c. Two Types:

i. Enumerated: Statute that goes to great lengths to spell out what kinds of relationships and activities are sufficient to establish p/j. Apply the statute to D’s conduct and Court precedent to determine if there is p/j.

ii. Non or uneumerated: Example is California Civil Code of Procedure – this says that courts can hold anyone under p/j if it is not unconstitutional. To evaluate this you have to go straight to precedent and case law.

Burger King v. Rudzewick

• D buys into a Burger King franchise, falls behind on payments and Burger King terminates the franchise and orders D to evacuate but they didn’t and then BK filed a suit against them. Supreme Court had to determine whether the long-arm statute offended traditional concepts of fair play and substantial justice.

• The franchise grew directly out of contact in FL and that they had availed themselves of FL law FRCP 52(a) says you cant put these findings of fact aside unless they are clearly erroneous and they aren’t here – forcing them to come to FL to defend the case is not unfair or unconstitutional.

Burnham v. Superior Court

• Key case of family law in civil procedure. D comes to CA to see his family, he lives in NJ, but while he’s there in CA with the kids she serves him papers. Had to look at whether 14th Amendment denies CA courts jurisdiction over a nonresident who was personally served with process while in the state.

• Key – The Due process clause does not prohibit CA courts from exercising jurisdiction over petitioner based on in state service of process.

o Physical presence in the state alone constitutes due process and is fair with traditional notions of fair play and substantial justice. If there is physical presence you don’t need to apply the minimum contacts test.

d. Cyberspace – this is the nightmare of the ubiquitous defendant – the defendant that is everywhere. Keys are if the website is passive or active. The same test will be applied – burden of D, P’s choice of forum, interest of the state, etc.

Digital Equipment Corp. v. AltaVista Technology, Inc.

• Court holds that jurisdiction over Altavista is appropriate for their likely breach of license and likely infringement in Massachusetts.

IV. Federal Subject Matter Jurisdiction

• Federal Subject Matter Jurisdiction is established through constitutional development with the intention of the legislators having been to set up a court system that dealt only with specific areas of cases.

a. This is limited by:

i. Amount in controversy ( over $75,000

ii. Complete Diversity ( no one P can be a citizen of the same state as any of the D’s. The diversity must exist at the time the complaint is filed. If it’s a corporation citizenship is determined through looking at the STATE OF INCORPORATION AND STATE WHERE PRINCIPLE PLACE OF BUSINESS IS LOCATED.

• 28 USC 1332 - Diversity of Citizenship + amount in controversy: The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states, citizens of a state and subjects of a foreign state, citizens of different states and in which citizens or subjects or a foreign state are additional parties, a foreign state as plaintiff and citizens of a State of different states.

• To meet jurisdictional amount P may aggregate all claims against a single d, or can aggregate against several D as long as they are jointly liable.

• Several P can aggregate ONLY when they are seeking “to enforce a single title or right in which they have a common and undivided interest”

Mas v. Perry:

• Mas is from Mississippi but living in Louisiana and Perry is from Louisiana. Perry had installed a two way mirror in their bedroom so that he could watch them. She is able to pursue the suit in federal court because even though she was living in Louisiana her domicile remained MI and there was no evidence that she had any intention to say in Louisiana after finishing school.

Tanzymore v. Bethlem Steel Corp.:

• D files his claim in the federal court of Pennsylvania. He claims that he is from Ohio, but nothing in his testimony shows that he actually is. Determining jurisdiction for a federal case is non-waivable and after it is shown that there is not diversity of citizenship the federal court MUST throw out the case.

iii. Federal Question ( “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States”

1. Independent – the basic subject of the case is sufficient to be a federal case

2. Supplemental – claims that are not jurisdictional in themselves can sneak into federal court if they are bootstrapped onto an independent claim.

* Only the defendant can remove the case to federal court on the grounds that it should have been filed there to begin with.

* 28 USC 1331 – Federal Question: The district courts shall have original jurisdiction of all civil actions arising under the Constitutions, laws, or treaties of the United States.

* Derives from Article 3 of the Constitution

3. Sources of Federal Question:

a. Statutes (Congress) – U.S. Code

b. US Constitution

c. Treaties

▪ Well-Pleaded Complaint Requirement – The Federal Question MUST come up in the plaintiff’s original complaint – not in their response to what they believe the defendant will respond to in their complaint.

Louisville & Nashville R.R. Co. v. Mottley:

• D’s were riding on P’s railroad and were injured and agreed to forfeit their claim in exchange for free passes on the trains for life. In 1906 Congress prohibited the giving of passes under any circumstances so D failed to renew P’s passes and they filed suit.

• This is not a federal question because it is really an anticipated response of the defense. The actual cause of action did not arise under the Constitution, laws or treaties of the US. Because it is not a federal case the court does not have the discretion to drop the case – they MUST drop the case.

4. Implied Private Right of Action

• It is not essential that the federal statute expressly provide for a civil cause of action for an alleged violation.

• There is an express private right of action or an implied right to sue when: CORT v. ASH FACTORS:

o The statute was enacted for the benefit of a special class of which the plaintiff is a member

o Legislative history evinces an intent to create a private right of action.

o Finding a private right of action would frustrate the purpose of the legislative scheme

o Whether implying a private right of action is inappropriate because the subject matter involves an area basically of concern to the states.

Merrell Dow Pharmaceuticals v. Thompson

• P took Benedictin during pregnancy, labeling did not provide info about sufficient danger, and children were born with multiple deformities as a result.

• Court held that alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there is no private, federal cause of action does not state a claim arising under the Constitution. Majority says this is not a federal case and there is no private right of action under the Cort v. Ash Factors.

o Dissent sees that there is an issue of federal law – and that the violation of the FDCA directly and proximately caused P’s injuries.

Cannon v. University of Chicago:

• Federal question is plaintiff’s claim that she was denied entrance into medical school because she was a woman.

• This case proceeds on a federal level because the issues are more based upon federal questions and it evokes public law and principles – here through the Cort v. Ash factors it can be determined that the intentions of this federal question was that there would be a private right of action.

V. VENUE:

• 28 USC 1391 – Venue Generally

• A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by the law be brought only in:

o Judicial district where any defendant resides, if all D reside in the same state

o A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated

o OR, a judicial district in which any D is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

• A civil action wherein jurisdiction is NOT founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in:

o A judicial district where any defendant resides, if all D reside in the same state

o A judicial district in which a substantial part of all the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated

o OR a judicial district in which any D may be found if there is no district in which the action may otherwise be brought.

• For purposes of venue, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a D that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to p/j if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contact.

a. To bring a case in Federal Court you need Personal Jurisdiction, Subject matter jurisdiction (power to adjudicate) and Venue (proper district)

b. KEY SECTIONS:

i. 1391(a) – if it is a case founded on diversity of citizenship and amount in dispute

ii. 1391(b) – applies to cases that are not founded solely on diversity of citizenship – this is usually federal question cases.

VI. Constructing a Civil Lawsuit ( Pleadings (Complaint + Answer + Reply)

a. Complaint: Includes FRCP 7-10.

b. FRCP 7:

i. 7(a): Pleadings: There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross claim, If the answer contains a cross-claim; a third party complaint if a person was not an original party is summoned under the provision of rule 14; and a third party answer, if a third party complaint is served. No other pleading shall be allowed except that

ii. 7(b): Motions and Other Papers: An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefore, and shall set forth the relief or order sought. All motions must be signed in accordance with Rule 11.

c. FRCP 8:

i. 8(a)

1. A short statement of the grounds for the court’s jurisdiction

2. A short statement of the claim showing that the pleader is entitled to relief, and

3. A demand for judgment for relief, which may be in the alternative.

ii. 8(b): Defenses; Form of Denials: A party shall state in short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies.

iii. 8(c): Affirmative Defenses: Lists affirmative defenses and how when a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been proper designation.

iv. 8(d): Effect of Failure to Deny: Averments in a pleading to which a responsive pleading is requires, other than those as to the amount of damage, are admitted when not denied in the responsive pleading.

v. 8(e): Pleading to be concise and direct; consistency: Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleadings or motions are required. A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses.

vi. 8(f): Construction of Pleadings: All pleadings shall be so constructed as to do substantial justice.

d. FRCP 9(b): Conditions Precedent: In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be specifically and with particularity.

e. FRCP 10

i. 10(a): Caption; Name of Parties: Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7(a).

ii. 10(b): Paragraphs; Separate Statements: All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances, and a paragraph may be referred to by number in all succeeding pleadings.

Conley v. Gibson

• Petitioners were black employees of the Texas and New Orleans Railroad and were supposed to be protected from discharge and loss of seniority. In 1954 they were fired and replaced by white workers and they filed for a violation of rights under the Railroad Labor Act and sought a declaratory judgment, injunction and relief.

• The claim was sufficient under Rule 8 because it gave the defendant sufficient notice of what the plaintiff’s claim was and on what grounds it rested.

American Nurses’ Association v. Illinois

• P’s charged the State of Illinois with sex discrimination in employment and their argument was based upon the state’s practice of paying workers in predominantly male jobs a higher wage not justified by any difference in the relative value of the work. Example of a claim that is just too long and has no clear concise statement of what is wanted.

• Original claim did not set forth a adequate claim under Rule 8 – but that it would be premature to say that there was no worthwhile remedy for the intentional discrimination. Judge Posner said there was one worthwhile claim in their entire, extremely complaint, and that they should modify it.

f. Pre-answer Motions:

i. Rule 12(b) – Prior to filing an answer, D may, file a motion to raise any of the following defenses:

1. Lack of subj. matter jurisdiction. No diversity of citizenship, amount in controversy or federal question

2. Lack of p/j – Minimum contacts, no connection with the state

3. Improper venue (disfavored – because they don’t go to the nature of the lawsuit – if you don’t raise them immediately you waive them.). Where the action occurred, where the defendants are located

4. Insufficiency of process – refers to technical accuracy of the process of having a complaint of answer

5. Insufficiency of service of process – gets back to the rule for notice provisions and who can be served, who the server can be, etc.

6. Failure to state a claim upon which relief can be granted – most common 12(b) motion. If everything as stated is true there are no grounds for relief.

7. Failure to join a party needed for just adjudication under Rule 19.

ii. 12(c) – Motion for judgment on the pleadings: After the pleadings are closed any party can move for judgment on the pleadings. If, on a motion for judgment on the pleadings, other matters are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in rule 56.

iii. 12(e) –Motion for a more definite statement: If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading.

iv. 12(g) – Consolidation of Defenses in Motion: A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this rule but omits therefore any defense or objection then available to the party which this rule permits to be raised by the motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in (h)(2). If you are going to file any, you have to consolidate or bundle your complaint and file them all in the answer. Subject to the rules of h(1) and h(2)

v. 12(h) – Waiver or Preservation of Certain Defenses. A defense or lack of jurisdiction over the person, improper venue, insufficiency of process or insufficiency of the service of process is waived if omitted from a motion in the circumstances described in (g) or if it is nether made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by rule 15(a) to be made as a matter of course.

1. Objection to jurisdiction over the person, venue, insufficiency of process or service of process need to go first. 12(b)(2-5) have to come up right away or you have waived them – disfavored.

2. 12(b)(6-7) and failure to state a legal defense to claim. This is more favored

3. Whenever it appears by suggestion or the parties or otherwise that the court lacks jurisdiction of the subject matter the court shall dismiss the action.

g. Answer: Must contain a specific denial or admission to each averment of the complaint or a general denial with specific admissions to certain averments. The answer must also state all affirmative defenses such as statute of limitations, Statute of Frauds, res judicata, etc. A failure to deny constitutes an admission.

i. If no Rule 12 motion is made you have 20 days after service to file. If it was mailed you have 60 days to respond.

ii. If a Rule 12 motion is filed and the court does not fix another time the responsive pleading is to be served within 10 days

iii. Can include counterclaims that D has against P – if this counterclaim arises out of the same transaction it is compulsory. (FRCP 13).

iv. If the P served D out of state where the District Court sits, the time to answer is governed by that States rule.

v. Affirmative Defenses ( Gomez v. Toledo- qualified immunity as a defense.

vi. FRCP 13: Counterclaim and Cross-claim

1. 13(a): Compulsory Counterclaim: A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.

2. 13(b): Permissive Counterclaims: A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim

3. 13(e): Counterclaim Maturing of Acquired After Pleading: A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.

4. 13(f): Omitted Counterclaim: When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment

5. 13(g): Cross-Claim Against Co-party: A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action.

h. Reply: Reply by the plaintiff is required only where the defendant’s answer contains a counterclaim denominated as such. The reply must be served within 20 days after service of the answer or, if the reply is ordered by the court, within 20 days of the court order. A P need not reply to an affirmative defense; he is deemed to deny or avoid the allegation of the defense.

Other Important Pleading Information:

Rule 11: Signing/ Representations/ Sanctions

a. Signature: Every pleading, written motion, or other paper shall be signed by at least one attorney of record in the attorney’s individual name, or if the party is not represented by an attorney, shall be signed by the party.

b. Representations to Court: By presenting to the court a pleading, written motion or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstance that:

a. It is not presented for any improper purpose

b. The claims, defenses, and other legal contentions therein are warranted by existing law and are nonfrivilous

c. There is evidentiary support

d. The denials of factual contentions are warranted.

c. Sanctions: If the court determines that subdivision (b) has been violated the court may impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subsection (b) or are responsible for the violation.

o Heightened Pleading Standard( Policy issue of whether we want there to be an anticipation of the qualified immunity of some municipalities as a notion of public policy. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit.

▪ 9(b) says that there is only heightened pleading for fraud or mistake and nothing else.

o Securities Fraud Legislation: Rule 11

▪ Makes it harder to get into court. Synonymous with punishing frivolous lawsuits

o Pleading in the Alternative: 8(e)(2) – a party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one court or defense or in separate counts or defenses. All statements are made subject to the obligations set forth in Rule 11.

o McKormick v. Kopmann (he was either drunk, or it was a wrongful death claim.

i. Amendments and Supplemental Pleadings

i. As a matter of course, a pleading may be amended once before a responsive pleading is served. Of if no responsive pleading is required, within 20 days of the service of the pleading. Thereafter, a pleading may be amended only by written consent of the adverse party or by a leave of the court upon motion. Leave of the court is freely given when justice so requires.

ii. Rule 15

1. a) Amended pleading: Rule of when plaintiff or defendant can amend. A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served or within 20 days if no response is needed.

2. b) Amendments to conform to the evidence: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. They made be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the results of the issues at trial.

3. c) Relation back: An amendment of a pleading relates back to the date of the original pleading when, it is permitted by law that provides the statute of limitations, the claim or defense asserted arose out of the conduct, transaction or occurrence set forth in the original pleading, amendment changes the party or the naming of the original party

4. d) Supplemental Pleadings: Upon motion of a party the court may upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth the transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.

a. Barcume v. Flint: Relation back permitted when the law provides that the statute of limitations is applicable to the action and the claim or defense arose out of the same conduct, transaction or occurrence of the original pleading. (C,T,O)

5. d) Supplemental Pleading: Relates to matters occurring after the date of the original pleading. Brings the pleadings up to date.

iii. Joinder of Parties

1. Compulsory Joinder: Under Rule 19 a party is needed for just adjudication if

a. Complete relief cannot be given to the existing parties in her absence

b. Disposition in her absence may impair her ability to protect her interest in the controversy

c. Her absence would expose existing parties to a substantial risk of double or inconsistent obligations.

VII. Discovery

A. Rule 26 requires parties to disclose certain information to other parties without waiting for a discovery request. However, Rule 26 also has provisions allowing stipulation of the parties or court order to modify some disclosure requirements.

a. 26(a)(1) – voluntary (automatic) disclosure includes the name and, if known, the address and telephone number of each individual likely to have discoverable information that the discovering party may use to support its claims or defenses, unless solely for impeachment, copies of documents, data, and tangible things

b. 26(b)(1) – In general: parties may obtain discovery regarding any matter, not privileged that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.

c. 26(b)(2) – Limitations: Limited to anything that is unreasonably cumulative or duplicative, or is obtainable from some other convenient or less expensive source, the party had ample opportunity to get the information sought by other means, or the burden outweighs the benefit.

d. 26(b)(3) – work product rule. Trial Preparation: Materials: Includes prepared in light of litigation or trial, by or for another party, or by or for that other parties representatives, only has to be turned over when there is a substantial need for the materials and that they would be unable without undue hardship to gain the information by other means.

e. 26(b)(5) – Claims of Privilege or Protection of Trial Preparation Materials: When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

f. 26(c) – Protective Orders: An order which may be made where justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. If the motion is denied – the court can order the material provide or permit discovery of the material

g. 26(g) – Signing of Disclosures, Discovery Requests, Responses, and Objections: Every disclosure shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated.

B. 26-36 are the methods of discovery

a. 26 - defines discovery – and its limits

b. 27 – depositions before an action is filed

c. 28 – about persons from whom depositions can be taken

d. 29 – stipulations regarding the discovery procedure

e. 30 – classic rule ( depositions under oral examination

f. 31 – deposition upon written questions

g. 32 – use of depositions in court proceedings

h. 33 – interrogatories. No swearing in of their accuracy

i. 34 – request for production of documents and other things

j. 35 – request for physical of mental examination – must go to a judge first

k. 36 – request for admission. Having one party send a list of allegations that they would like the other side to agree to.

C. 37 – mechanism of the motion to compel, and sanctions within discovery

a. 37(a): Motion for order Compelling Disclosure or Discovery: A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows: Appropriate court, motion, evasive or incomplete disclosure, expenses and sanctions.

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