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14 Cards in this Set

  • Front
  • Back
Contents of a Summons
(a) name court and parties; (b) directed to Δ;
(c) name and address of Π’s attorney or if unrepresented Π;
(d) time within which Δ must appear and defend;
(e) notify Δ that failure to appear/defend will result in default judgment;
(f) signed by clerk;
(g) bear court’s seal
Service in general
4(c): (1) summons served w/ copy of complaint in allotted time; (2) by any person 18+ and not a party; (3) at Π’s request court can order marshal, court must do this if Π in forma pauperis.
serving individual within US
4(e): (1) follow state law (2)(a) deliver copy personally, (b) leave copy at dwelling w/ someone of suitable age/discretion who resides there, (c) deliver copy to authorized agent
serving individual in foreign country
4(f): (1) any int’lly agreed means; (2) method reasonably calculated to give notice;(3) another non-prohibited means
serving corporation in foreign country
(1) any int’lly agreed means; (2) (A) as prescribed by foreign country’s law, (B) as foreign authority directs in response to a letter, (C) unless prohibited by foreign country’s law by (ii) using any for of mail that clerk addresses and sends that requires signed receipt; () by other means not prohibited by int’l agreement, as court orders.
Rio International Properties, Inc v. Rio International Interlink: Service of process under rule 4(f)(3) is neither a last resort nor extraordinary relief. Simply one means among several; reasonable way for Δ to know about suit
Claim for relief must contain
8(a) (1) short and plain statement of grounds for court’s jurisdiction; (2) short and plain statement of the claim showing that the pleader is entitled to relief; (3) demand for relief sought
How must defendant state defenses?
(1) In response party must (a) state in short and plain terms its defenses to each claim, (b) admit or deny allegations; (2) denial must fairly respond to substance of allegation; (3) if party denies all allegations may do so in general denial; (4) if only deny part of allegation must admit part that is true; (5) a party that lacks sufficient knowledge/info to determine truth of allegation must so state and this has the effect of a denial; (6) failure to deny=admit
what kinds of responses to a complaint are there?
o wrong place: 12(b)(1-5), 1404/1406 fed statutes allow ask for change of venue
o so what: 12(b)(6), 12f
o Huh?: 12(e), used rarely b/c courts don’t like to grant and if awful do 12(b)(6)
o Missing Someone: Rule 19 (compulsory joiner of parties)
• Rule 19(a) - Π sued Δ, but there’s someone else out there N(the necessary party) that should be put of this lawsuit and you’re missing them and w/o them it doesn’t make sense to have this litigation – want court to order that they be joined
• 19(b)/12(b)(7) – if they should be joined in the lawsuit/necessary to lawsuit, but court can’t order that they be joined b/c court doesn’t have jurisdiction court may order that case be dismissed
o Nuh-uh: 8(b) Δ denies some or all of allegations
o Yes, but: 8(c) affirmative defenses
o Counterclaim: Π sues Δ, Δ says you’re liable to me b/c of something related or maybe unrelated and Δ serves counterclaim to Π; Rule 13
o Crossclaim: Π sues Δ1 and Δ2, Δ1 says that he has claim against Δ2 also 13(g)
o Third Party Claim (impleader) Π sues Δ; Δ says if I am liable to Π there is someone else out there, T, who should have to reimburse me for this Rule 14
how can a party waive defenses?
(h)(1) a party waives any defense listed in 12(b)(2-5) by (A) omitting it as mentioned in 12(g)(2), (B) failing to make it by motion or include it in responsive pleading or amendment allowed by 15(a)(1); (2) 12(b)(6) or 19(b) , or to state a legal defense ay be raised (A) in any pleading allowed under 7(a), (B) by motion under 12(c), (C) at trial; (3) if court determines lack of subject-matter jurisdiction they must dismiss the action no matter what
Amending pleadings before trial
(15)(a)(1) as a matter of course a party may amend pleading once (A) before being served with a responsive pleading, (B) w/in 20 days after serving pleading if responsive pleading not allowed and action not yet on trial calendar, ie if you are Δ and want to amend answer; (2) in all other cases can amend w/ opposing party’s consent or court’s leave. Court should freely give leave when justice so requires.; (3) unless court orders otherwise any response to amended pleading must be made within time remaining to respond to original pleading or within 10 days, whichever is later.
Amending pleadings during and after trial
(15)(b)(1) based on objection at trial court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits; (2) issue not raised by pleadings is tried by parties’ express/implied consent, treated as if raised
Relation back of amendments (after statute of limitations has passed
15(c)(1) an amendment to a pleading relates back to the date of the original pleading when (A) law provides the applicable statute of limitations allows relation back, (B) amendment asserts claim/defense that arose out of the conduct, transaction, or occurrence set out in original pleading, (C) cannot use relation back if bring new Δ after statute expires. Only exception to this is mistaken identity, party should have known about lawsuit and that it was against them.
Policing pleadings and motions requirements
11(a): every pleading, written motion, other paper must be signed by attorney. Court must strike unsigned paper unless omission promptly corrected.
11(b) attorney certifies that “to the best of the person’s knowledge, info, and belief formed after an inquiry reasonable under the circumstances” (1) no improper purpose, (2) legal contentions warranted, (3) factual contentions have evidentiary support, (4) denials of factual contentions are warranted
Policing pleadings and motions sanctions
11(c) sanctions (1) if after notice and reasonable opportunity to response court determines that 11(b) violated, court may impose appropriate sanction – law firm held jointly responsible for violation committed by its employee; (2) motion for sanctions must be made separately from other motions and describe specific conduct that violates 11(b). Motion must be served under Rule 5, but not filed or presented to court if withdrawn or appropriately corrected within 21 days or another time court sets (harbor provision); (3) on court’s initiative (sua sponte) court may order show cause why conduct specifically described in order has not violated 11(b) (4) sanction imposed must be limited to what suffices to deter repetition; (5) court cannot impose monetary sanctions (a) against a represented party for violating rule 11(b)(2), (b) on its own unless issued show cause order under 11(c)(3); (6) order imposing sanction must describe sanctioned conduct and explain basis