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27 Cards in this Set
- Front
- Back
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Service of Process
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1) Summons
2) Copy of Complaint -w/in 120 days, otherwse case dismissed w/o prejudice -by any non-party who is at least 18 years old |
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Personal Service
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Personal
anywhere in forum state |
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Substituted Service
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1) @ Defendant's abode
2) Serves someone of suitable age AND discretion who resides there |
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Servce on D's agent
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OK if receiving service is within the scope of agency
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Service by State Law
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(Same as CA)
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Service - Waiver by Mail
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1) Mail copy of complaint and two copies of a waiver form
2) w/ prepaid means of returning form 3) if D executes and mails the waiver form to P within 30 days = waiver of formal service 4) P can file waiver in court |
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Service by Federal Court outside state
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Only allowed if state law allows
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Immunity from Service
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Defendant immune from service in within state to be a witness in another civil case
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Service + Mail time
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Later papers (after process) - add 3 days for any required response
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Rule 11
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Requires attorney or pro-se litigant to sign all papers
CERTIFICATION that after r/s inquiry: 1) paper not for improper purpose 2) legal contentions warranted by law 3) factual contentions have evidentiary support (or likely to have it) |
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Rule 11 --
Motion for Sanctions (Safe Harbor provision betw/ parties) |
1) Non-violating party serves Motion for Sanctions
2) Violating party has 21 days to cure deficiency (Safe Harbor Rule) |
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Rule 11 -- Sua Sponte
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Court can raise Rule 11 issues on ts own
No Safe Harbor Provision |
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Complaint - Requirements
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1) statement of grounds for subject matter jurisdiction
2) shore and plaint statement of claim, showing entitlement to relief (plausible claim -- Twombly) 3) demand for relief sought |
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Complaint -- Pleading with particularity or specificity REQUIRED
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Fraud, Mistake, Special Damages (24/7 erection case)
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Motions
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Must serve w/in 21 days
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Motions -- Rule 12(b) Defenses
(7) |
1) Lack of subject matter Jx
2) Lack of personal Jx 3) Improper Venue 4) Insufficient process 5) Insufficient service of process 6) Failure to state a claim 7) Failure to joint indispensable party Can be raised by MOTION or in ANSWER |
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Motions -- Rule 12(b) Waivable Defenses
(4) |
Lack of personal Jx
Improper Venue Insufficient process Insufficient service of process If not raised in first Rule 12 response, then permanently waived |
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Answer
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1) Respond to allegations in a complaint
2) Raise affirmative defenses |
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Answer -- Affirmative Defenses
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Must plead affirmative defenses, otherwise waived
(Ex. SOL, SOF, res judicata, self-defense). |
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Counterclaim
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Claim against opposing party
COMPULSORY (must file w/ answer) --> arises from same transaction/occurrence as P's claim PERMISSIVE (does not have to be filed w/ answer) --> does not arise from same transaction/occurrence as P's claim ***--> then, assess SMJ; consider supp Jx*** |
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Cross-Claim
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Claim against a co-party
Must arise from same T/O as underlying action |
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Amendments - Plaintiff
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ONCE w/in 21 days after Def services first Rule 12 response
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Amendments -- Defendant
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ONCE w/in 21 days of serving answer
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Amendments -- No Right to Amend but Seeking Leave of Court
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"If justice so requires"
usually: delay, prejudice, futility of amendment |
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Variance
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To ensure pleadings match what was actually tried
IF NO OBJECTIONS --> can amend pleadings when evidence @ trial different from what was pled |
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Amendment after SOL runs -- Relation-Back (New Claim)
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Amended pleadings relate-back if they concern the same conduct, transaction or occurrence as the original pleading
Treat amended pleading as though it was filed when original filed (way around SOL) |
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Amendment after SOL runs -- Relation-Back (New Party)
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Relation-Back if:
1) same conduct, transaction, occurrence 2) correct party knew of action w/in 120 days of filing 3) correct party knew, but for mistake, she would have been named originally |
