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DUE PROCESS:
PLEADINGS:
Pleadings serve the function of notice to the opposing parties
I. Complaint: Rule 8
a. Each claim for relief should have: Rule 8(a)
i. A short and plain statement showing jurisdiction
ii. A short and plain statement of the claim showing entitlement to relief
***FORM 9***
iii. A demand for judgment
b. Dioguardi v. Durning (pg. 177)
i. All that is necessary is a short and plain statement of relief
c. Court must have subject matter jurisdiction
i. Must provide short statement showing jurisdiction (PJ and SMJ)
d. Statement showing entitlement to relief:
i. Conley v. Gibson
1. All allegations taken as true
2. Read the complaint in the light most favorable to P
3. Makes extremely difficult to win 12(b)(6)
ii. Complaint must withstand a 12(b)(6)
1. No set of facts (that give rise to cognizable CofA
2. No such cause of action
3. Facts alleged miss an element of the Cause of Action
iii. Notice must be given (RULE 4)
1. 120 days from time of filing of complaint
2. Rule 4(e-j) shows = how to serve process
iv. Real Party in Interest RULE 17(a,b)
1. must be prosecuted in real party at interest
2. not grounds for dismissal
3. Must have real name, except for special privacy cases
a. Doe v. U.S. Life Ins.
v. Inconsistent Claims: 8(e)(2)
1. Party may brings as many claims as necessary regardless of
consistency
2. Henry v. Daytop Village
a. Inconsistency is not grounds for dismissal or summary
judgment
vi. No Heightened Pleading Requirements
1. Leatherman v. Tarrant County - EXCEPTION
a. Only “short and plain statement”
2. Exceptions: Rule 9(b)
a. Fraud and Mistake must be pleaded with some degree of
specificity
e. Demand For Judgment or RELIEF***
i. FILL THIS SECTION IN***
f. Due Process Requires NOTICE and therefoe service of Process
i. SEE BELOW
II. Pre-Answer Motions: Rule 12
a. Rule 12(b) : prior to filing an answer, the defendant may, if he chooses, file a
motion and raise any or all of the following defenses:
i. Lack of subject matter jurisdiction
ii. Lack of personal jurisdiction
iii. Improper venue
iv. Insufficiency of process
v. Insufficiency of service of process
vi. ***Failure to state a claim upon which relief can be granted (even if P’s
allegations are true, relief can not be granted**)
1. Conley v. Gibson (must prove “no set of facts that would entitle
him to relief…”)
2. Bower v. Weissman;
3. look at the facts pleaded and determine if the elements of a cause
of action are laid out
vii. Failure to join a party needed for just adjudication (RULE 19)
1. Motions 1,2,3, and 6 are fatal motions that will terminate the case
if granted
b. Motion for a more Definite Statement: Rule 12(e)
i. Party may file if the complaint is “so vague and ambiguous that a party
cannot reasonably be required to frame a responsive pleading”
ii. An opposing party has 10 days to provide the more definite statmnt
c. Motion to Strike: Rule 12(f)
i. Made to strike any redundant, immaterial, impertinent, or scandalous
material
d. Consolidation of Defenses: RULE 12(g)
i. Generally, a motion under Rule 12 may join any other motions or defenses
under Rule 12 or they are waived
ii. EXCEPTIONS: “favored motions”
1. Failure to state a claim
2. Failure to join a party (rule 19)
3. Lack of Subject Matter Jurisdiction
a. May be brought to attention by ‘parties or otherwise’
iii. Basically, Motions 1,6,7, are preserved but 2,3,4,5 are waived if not
brought in a motion if one or the answer (first response to the complaint)
III. Answer
a. Rule 8(b) ADMIT OR DENY
i. Party must admit or deny every averment in the complaint
ii. Statement of lack of sufficient knowledge or information takes the form of
DENIAL
1. Must do sufficient investigation before stating that you lack the
knowledge or information (Greenbaum v. U.S.)
b. Rule 8(c): AFFIRMATIVE DEFENSES
i. Must state any Aff def. that the party may have
ii. EX: SOL, res judicata, Statute of Frauds, etc…
iii. The D has the burden of pleading, production, and persuasion
c. Failure to deny – Rule 8(d)
i. Failure to deny an averment in the complaint takes effect of admitting the
averment
d. Timing of answer RULE 12(a)
i. If personally served: 20 days RULE 12(a)
ii. If served by mail and waiving formal service: 60 days
iii. If Rule 12 motion: 10 days after decision on motion
e. Objections to Complaint – (RULE 12(b)
i. File motions
f. Counterclaims and Cross Claims: RULE 13*** (fill in info on T&O)
i. Claims the defendant has against the plaintiff may be brought in the
answer
ii. Rule 13(a): if the claim arises from the same T&O must be brought or
barred “Compulsory Countercliam”
iii. Rule 13(b): any other claim is permissive and may be brought
iv. Rule 13(g): Cross claim against a co-party
1. must arise out of the same transaction or occurrence
2. EX: D1 files cross claim against D2 for indemnification.
3. “claimant may allege the other party is or may be liable for all or
part of the claim asserted in the action against the cross claimant
v. Impleader (see Joinder below
1. Rule 14
g. Reply:
i. Generally, the P need not reply, unless answer contains a counterclaim
ii. Must reply within 20 days of receiving answer if counterclaim
h. Jury Request – RULE 38
i. Request must be in writing before the trial, no later than 10 days after
service of last pleading
ii. For D usually jury request is placed in the answer
iii. May be waived if not placed in the answer
iv. Voire Dire – Rule 47
1. Each side has unlimited strikes for cause
2. 3 preemptory strikes per side
3. strikes may not be based upon race or gender
IV. Motions for Involuntary and Voluntary Dismissal
DISCOVERY
V. DISCOVERY
a. Purposes:
i. Reduces trial by ambush, Promotes settlement
b. RULE 26
i. A party is entitled to demand the discovery of any matter:
1. relevant to the claim or defense of a party
2. Not unreasonably cumulative or burdensome
3. that is not privileged – RULE 26(b)(1)
a. Hickman v. Taylor (attorney work product)
4. Things unrelated to the claim or defense if with leave of court
c. Methods of Discovery:
i. Depositions: may depose a party or non-party
1. expensive
2. Rule 30
ii. Interrogatories (in federal court you get 25 questions)
1. only sent to parties
2. Rule 33
iii. Request for production of documents
1. Rule 34
iv. Requests for admissions
1. Only for parties – failure to deny = admission
d. Scope of Discovery
i. RULE 26(b)(1) – “parties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any party”
1. can discover anything relevant to a claim or defense or reasonably
believed to lead to admissible evidence
2. privileged matter may not be discoverable
3. Relevant information need not be admissible if it is likely to lead to
admissible evidence
ii. Exceptions to the broad scope of discovery:
1. privileged information (ex: attorney/client privilege)
2. Work-product privilege RULE 26(b)(3)
a. Bars the production of certain materials developed in
anticipation of litigation Hickman v. Taylor
iii. Experts
1. RULE 26(a)(2)
a. Parties are required to disclose the names of testifying
experts atleast 90 days before trial
b. Must also include report on their opinions and the basis for
those opinions
e. Sanctions for Discovery
i. Rule 37
ii. Moving party must first demonstrate the it tried to resolve the issue
iii. Sanction for continued noncompliance include:
1. Contempt
2. pay money
3. A lot weaker sanctions that RULE 11
DIRECTED VERDICT.
/ JUDGMENT AS MATTER OF LAW.
I. Directed Verdict (Judgment as a matter of law)
a. Rule 50
i. Motion must be made prior to submission of case to the jury
ii. Judge looks only at evidence
iii. Takes the decision away from the jury.
iv. Standard:
1. “The judge should consider all of the evidence (non-mover’s and
mover’s) in the light most favorable to the non-moving party. If the
facts point so strongly to one party that the court believes the
reasonable man could not arrive at a contrary verdict, the motion
should be granted…However, if the reasonable man could differ
the motion should be denied and the case should go to the jury
v. Judge must consider the evidence in the most light of the nonmoving
party.
b. Timing
i. Can be brought after any party closes their case-in-chief, but regardless,
ii. must be renewed at the close of the record to preserve future rights of
appeal.
1. happens after jury has been heard and permits the judge to reverse
jury while preserving the fact-finders decision for appeal.
iii. Must be renewed at the close of all evidence to allow a j.n.o.v.
1. judge may deny the motion and still render j.nov after the jury
decides??/
ENTRY OF JUDGMENT
JUDGMENT N.O.V. /.
JUDGMENT AS MATTER OF LAW.
I. Rule 50
a. Identical to Judgment as a matter of law, by standard.
b. Occurs after a jury has decided
c. Must be submitted no later than 10 days after entered judgment.
JOINDER :
Rules: 19, 18, 20, 13
PERSONAL JURISDICTION
Notice
I. Due process requires Notice and a Chance to be Heard
a. Service of Process (RULE ANALYSIS)
i. FRCP 4
1. Timing: 4(m): 120 days of filing complaint or action may be
dismissed
2. Process consists of a summons AND a copy of the complaint
a. Summons – Rule 4(a,b) – an official notice of suit
3. Service can be made by any non-party who is at least 18: Rule 4(c)
(2)
4. How to serve a person
a. Rule 4(e)(2)
i. Personal Service (hand it to him) anywhere in the
state
ii. Substituted Service (serving a substitute, not D)
1. OK if:
a. At D’s usual abode or dwelling
house AND
b. Must serve someone of suitable age
and discretion who resides there
iii. Service of Agent – contract or operation of law
b. Rule 4(e)(1)
i. Use any method of serving process that is allowed
by state law where the federal court sits OR
ii. The use of state law where the service is being done
if out of state
1. Ex: if D in Maine…under the laws of Maine
iii. Can use state, or FRCP methods
5. How to serve a corporation
a. Serve an officer or managing general Agent or to an agent
authorized to receive service
b. Also may be made pursuant to 4(e)(1) – pertaining to state
laws
6. Waiver by Mail: Rule 4(d)
a. Does not allow service of process by mail
b. Rule 4(d)(2) provides a duty to waive service if asked
unless there is good cause
c. 4(d)(3)- provides incentive to waive service…60 days to
answer rather than 20 days
7. Geographic Limits: Rule 4(k)(1)(a) – “Federal LA statute”
a. The federal court is authorized to assert jurisdiction if the
courts of the state in which the federal court sits court sits
could assert jurisdiction over the defendants
b. Rule 4(k)(1)(b) – bulge rule for ADDITIONAL parties
i. Impleaded parties subject to jurisdiction is served
within 100 hundred miles of the courthouse
c. 4(k)(1)(c)- parties subject to interpleader jurisdiction
ii. Constitutional Analysis
1. Mulane
a. Notice must be reasonably calculated under all the
circumstances to appraise the D of the suit.
b. Notice by Publication
i. Almost always in newspapers and almost always
invalid
ii. Would be permissible if you can’t identify all
parties or the residence.
c. “An elementary and fundamental requirement of due
process is notice reasonably calculated, under all the
circumstances to apprise interested parties of the pendency
of the action and afford them an opportunity to present their
objections” - Mullane
iii. Opportunity to be heard
1. Fluentes – pre judgment seizure of property
a. P must give an affidavit of the claim
b. P must show specific facts
c. Must get a court order to seize the property
d. P may be required to post a bond
e. D must get a hearing on the merits at some point
Venue
I. Basic Provisions: § 1391(a,b)
a. § 1391(a) – diversity
b. § 1391(b) – federal question
c. P can lay venue in:
i. Any district where a substantial part of the claim occurred OR
ii. Any district where a D resides as long as all D’s live in same state
1. EXCEPTION – if all D’s reside in different districts of the same
state, can be brought into a district where one D resides
a. Reside
i. People
1. where they are domiciled
ii. Corporations
1. All places subject to PJ (§ 1391(c))
iii. A district in which any D is subject to personal jurisdiction at the time the
action if there is not other district in which the claim may otherwise be
brought
II. Transfer of venue – can only transfer within the same jurisdictional system
a. Tranferor court – original court, where case is leaving
b. Transferee court – court to which case is going
c. Transferee court MUST be a proper venue and MUST have PJ. D can’t waive
them.
d. § 1404(a)
i. Used for convenience if venue is proper
ii. Applies when the transferor is a proper venue
iii. Look at convenience of the parties and witnesses and interest of justice
e. § 1406(a)
i. Applies when the transferor is an Improper venue
1. District court shall dismiss OR
2. transfer to a proper venue if in the interest of justice
III. Forum Non Conveniens
a. A court dismisses because the litigation would be more appropriate elsewhere
(usually involves a foreign state
b. Dismissed b/c transfer is impossible – because that other court is in a different
judicial system. Often a foreign country
c. Factors for dismissal
i. Public Factors
ii. Private Factors
d. Courts normally impose conditions such as consent to additional discovery, or
waiving SOL defense.
Challenging a Forum
I. Special Appearance
a. Cannot attack anything on the merits
II. Rule 12
a. Watch out for proper timing