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118 Cards in this Set

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Rule 4
A summons SHALL/CAN be served together with a copy of the complaint
A summons SHALL be served together with a copy of the complaint
Rule 4
Qualifications to serve:
Anyone at least 18 years old; and
A non-party to the suit
US MarSHALL to serve:
MAY request a US MarSHALL or a specially appointed agent to serve
Rule 4
Defendant who waives service DOES / DOESN'T waive any objection to venue or jurisdiction of the court
Defendant who waives service DOESN'T waive any objection to venue or jurisdiction of the court
Rule 4
Requirements for waiver of service notice
In writing:
Individuals
notice MUST be addressed directly to the defendant
Rule 4
Requirements for waiver of service notice
In writing:
Corporations\Associations
Corporations/associations—notice MUST be addressed to either an officer, managing/general agent, or agent appointed by law
Rule 4
Requirements for waiver of service notice
First class mail-- CAN/MUST send the notice by first class mail or other reliable means
First class mail-- MUST send the notice by first class mail or other reliable means
Rule 4
Requirements for waiver of service notice
Notice MUST/CAN include a copy of the complaint and identify the forum in which the complaint has been filed
Notice MUST include a copy of the complaint and identify the forum in which the complaint has been filed
Rule 4
Requirements for waiver of service notice
MUST/CAN specify the consequences of compliance and of failure to comply with request
MUST specify the consequences of compliance and of failure to comply with request
Rule 4
Requirements for waiver of service notice
Date the waiver was sent MUST/SHOULD be specified
Date the waiver was sent MUST be specified
Rule 4
Requirements for waiver of service notice
Time limit MUST be at least X days from the date sent for return (Y days if sent to a foreign country)
Time limit MUST be at least 30 days from the date sent for return (60 days if sent to a foreign country)
Rule 4
Requirements for waiver of service notice
MUST/CAN supply Δ with extra copy of notice and request and prepaid means of return
MUSTsupply Δ with extra copy of notice and request and prepaid means of return
Rule 4
Requirements for waiver of service notice
Δ MAY wait X days after the request is sent to furnish an answer (Y days if sent to a foreign country)
Δ MAY wait 60 days after the request is sent to furnish an answer (90 days if sent to a foreign country)
Rule 4
Requirements for waiver of service notice
Although the Δ MAY send an answer after X days, the response to the notice of the waiver MUST still be sent within Y days
Although the Δ MAY send an answer after X days, the response to the notice of the waiver MUST still be sent within Y days
Rule 4
Requirements for waiver of service notice
Δ will be responsible for the following costs if he does not consent to waiver of notice
cost subsequently incurred in order to effectuate service and costs of any motion needed to collect service costs, including reasonably attorney’s fees
Rule 4
equirements for waiver of service notice
If defendant does not waive service, MAY serve according to:
state law for service (either the state where the district court in which the action is being brought is located or the state where service is being made) or
MAY choose any of the following methods to serve under federal law
Personal service--¶ MUST personally serve to the individual (actual hand delivery) or
Abode service—to a resident in defendant’s usual place of abode; or
Substitute service—to an authorized agent
Rule 4
Service of summons or filing of a 4(e) waiver is sufficient to establish PJ if:
The forum district’s state laws allow it; or
The Δ is a joined party and is served within 100 miles from where the summons was issued; or
Defendant is subject to federal interpleader jurisdiction (§1335); or
It is authorized by a US statute
Rule 4
Service MUST be made within X days after filing the complaint
Service MUST be made within 120 days after filing the complaint
Rule 4
If service is not made in time the case will either be:
automatically dismissed or service will be demanded within a specified time
Rule 4
If service is not made in time and the • If ¶ shows good cause, the court MAY/MUST extend the time to serve
If ¶ shows good cause, the court MAY extend the time to serve
§ 1331—Federal Questions
All civil actions arising under the X, Y, or Z have original federal jurisdiction
All civil actions arising under the US Constitution, US laws, or US treaties have original federal jurisdiction
1332—Diversity of Citizenship
• District courts have original jurisdiction if the matter is controversy is greater than X and is between either:
75,000
Citizens of different states; or
Citizens of a state against citizens of foreign states or countries; or
Citizens of different states, with additional parties from different states or countries; or
Citizens of one state (or different states) against citizens of a foreign state acting as a ¶
1332/§ 1441—“Citizenship”
Corporate citizenship is:
Corporate citizenship is both the corporation’s state of incorporation and the corporation’s principal place of business
1332/§ 1441—“Citizenship”
Aliens citizenship is:
Aliens are citizens of the state where they are domiciled, if they reside there with the intention of becoming a permanent resident of the US
Rule 12
Answer MUST be served:
oIf summons served—within X days after service
If service waived—within Y days after request of waiver is sent
If summons served—within 20 days after service
If service waived—within 60 days after request of waiver is sent
Rule 12
Cross-claims/counterclaims Answers
If the answer is in response to a cross claim, ¶ has X days from the date the cross-claim was served OR
¶ SHALL reply to a counterclaim within Y days after service of Δ’s answer (within Z days after service of a court order, if ¶’s reply is ordered by the court)
If the answer is in response to a cross claim, ¶ has 20 days from the date the cross-claim was served OR
¶ SHALL reply to a counterclaim within 20 days after service of Δ’s answer (within 20 days after service of a court order, if ¶’s reply is ordered by the court)
Rule 12
If the US is a party, it SHALL have X days after the US attorney is served to respond
If the US is a party, it SHALL have 60 days after the US attorney is served to respond
Rule 12
If an officer or employee of the US is sued in his individual capacity, he has X days after he is served, or after the US attorney is served (whichever is later)
If an officer or employee of the US is sued in his individual capacity, he has 60 days after he is served, or after the US attorney is served (whichever is later)
Rule 12
• Exceptions to time limit
o If a court denies the motion or postpones disposition, then the answer is due within X days after court notifies of decision to proceed; or
If a court denies the motion or postpones disposition, then the answer is due within 10 days after court notifies of decision to proceed; or
Rule 12
• Exceptions to time limit
If a court grants motion for a more definite statement then within X days after receipt of ¶’s revised pleadings
If a court grants motion for a more definite statement then within 10 days after receipt of ¶’s revised pleadings
Rule 12
all defenses MUST be made in answer, except for:
Motion for lack of SMJ or PJ
improper venue
insufficiency of process
insufficiency of service of process
failure to state a valid claim upon which relief can be granted
failure to join a party under Rule 19
Rule 12
These defenses are made in a pre-answer motion
lack of SMJ
lack of PJ
improper venue
insufficiency of process
insufficiency of service of process
failure to state a valid claim upon which relief can be granted
failure to join a party under Rule 19
Rule 12
Motion for judgment on the pleadings 12C
This motion MUST/MAY be made after the pleadings if it does not delay the trial
This motion MAY be made after the pleadings if it does not delay the trial
Rule 12
Motion for judgment on the pleadings 12C
If matters outside the pleadings are presented and accepted by court, this becomes a rule X motion for ___________
If matters outside the pleadings are presented and accepted by court, this becomes a rule 56 motion for Summary Judgment
Rule 12
Motion for more definite statement 12(e)
This motion MAY/MUST be made if ¶’s pleadings are too vague/ambiguous so that Δ cannot reasonably frame a response
This motion MAY be made if ¶’s pleadings are too vague/ambiguous so that Δ cannot reasonably frame a response
Rule 12
Motion for more definite statement 12(e)
Motion MAY/MUST point out the defects in ¶’s pleadings
Motion MUST point out the defects in ¶’s pleadings
Rule 12
Motion for more definite statement 12(e)
If granted, the ¶ MUST re-plead within X days of the notice of motion
If granted, the ¶ MUST re-plead within 10 days of the notice of motion
Rule 12
Motion to strike 12(f)
The court MAY/MUST order to strike something from the pleadings if it contains:
Insufficient defenses
Redundancies
Immaterialities
Scandalous matter
The court MAY order to strike something from the pleadings if it contains:
Rule 12
Motion to strike 12(f)
Examples of things to strike from the pleadings:
Insufficient defenses
Redundancies
Immaterialities
Scandalous matter
Rule 12
Consolidating defenses 12(g)
A party CAN/MUST make a consolidated defense in order to join motions under this rule with any other motions available to the Δ
A party CAN make a consolidated defense in order to join motions under this rule with any other motions available to the Δ
Rule 12
Consolidating defenses 12(g)
If this motion is made, any available Rule 12(b) defenses that are omitted will be deemed to be WAIVED/NOT WAIVED (unless allowed by 12(h))
If this motion is made, any available Rule 12(b) defenses that are omitted will be deemed to be WAIVED(unless allowed by 12(h))
Rule 12
Waiver or preservation of defenses 12(h)
Objection to:
Lack of PJ; or
Improper venue; or
Insufficiency of process; or
Insufficiency of service will be waived if:
• Omitted from consolidated motions; or
• Not in responsive pleadings, in a motion, or in an amendment
Rule 12
Waiver or preservation of defenses 12(h)
Motions which MAY/MUST be made at trial or in pleadings:
Failure to state a valid claim
Failure to join a third party under rule 19
Motions which MAY be made at trial or in pleadings:
Failure to state a valid claim
Failure to join a third party under rule 19
Rule 12
Waiver or preservation of defenses 12(h)
Motion for lack of SMJ MAY/ MAY NOT be made at any time (even after judgment)
Motion for lack of SMJ MA be made at any time (even after judgment)
Rule 13—Counterclaims/Cross-claims
Compulsory counterclaims:
Compulsory counterclaim is an related claim “arising out of” the initial action
Rule 13
Compulsory counterclaim is an related claim “arising out of” the initial action (MUST/MAY arise out of the same transaction or occurrence)
Compulsory counterclaim is an related claim “arising out of” the initial action (MUST arise out of the same transaction or occurrence)
Rule 13
Compulsory counterclaims
Compulsory counterclaims MAY/MUST be joined
Compulsory counterclaims MUST be joined
Rule 13
Compulsory counterclaims
Any third parties involved MUST/MAY have PJ
Any third parties involved MUST have PJ
Rule 13—Counterclaims/Cross-claims
The counterclaim MUST be stated in the pleadings unless:
 The claim is already subject to another pending action
 The defendant brings the suit by attachment or process without the court’s jurisdiction
Rule 13—Counterclaims/Cross-claims
Permissive Counterclaims
A permissive counterclaim is any claim against an opposing party (not a new party) which is not related to the action
Rule 13—Counterclaims/Cross-claims
Permissive Counterclaims
Permissive counterclaims MAY/MUST be stated in pleadings
Permissive counterclaims MUST be stated in pleadings
Rule 13—Counterclaims/Cross-claims
Counterclaims exceeding opposing claims
Counterclaims MAY / MAY NOT seek more relief or different relief than the original claims that the opposing party had sought
Counterclaims MAY seek more relief or different relief than the original claims that the opposing party had sought
Rule 13—Counterclaims/Cross-claims
Counterclaims against the US
These rules SHALL/ SHALL NOT enlarge the present limits, (fixed by statute) of asserting counterclaims against the US government
These rules SHALL not enlarge the present limits, (fixed by statute) of asserting counterclaims against the US government
Rule 13—Counterclaims/Cross-claims
Post-pleading counterclaims
MAY/MUST be presented as a counterclaim in a supplemental pleading, if the court allows
Post-pleading counterclaims
MAY be presented as a counterclaim in a supplemental pleading, if the court allows
Rule 13—Counterclaims/Cross-claims
Omitted counterclaim—a pleader MAY obtain leave of court, to counterclaim by amending the pleading, only if it is omitted by:
Oversight; or
Inadvertence; or
Excusable neglect; or
When justice so requires
Rule 13—Counterclaims/Cross-claims
Omitted counterclaim—a pleader MAY/MUST obtain leave of court, to counterclaim by amending the pleading, only if it is omitted by:
Oversight; or
Inadvertence; or
Excusable neglect; or
When justice so requires
Omitted counterclaim—a pleader MAY obtain leave of court, to counterclaim by amending the pleading, only if it is omitted by:
Rule 13—Counterclaims/Cross-claims
Cross-claims against a co-party are usually considered __________
Cross-claims against a co-party are usually considered permissive
Rule 13—Counterclaims/Cross-claims
Guarantors same transaction: MAY allow cross-claim against a co-party for a claim either:
Arising out of the same transaction or occurrence of either:
The original claim;
A counterclaim; or
Relating to any property subject to the original action
Rule 13—Counterclaims/Cross-claims
Indemnity—cross claims MAY/MUST include a claim to a co-party to indemnify the claimant for all or part of the liability arising out of the action
Indemnity—cross claims MAY include a claim to a co-party to indemnify the claimant for all or part of the liability arising out of the action
Rule 13—Counterclaims/Cross-claims
Joinder of additional parties—parties MUST/MAY be joined in counterclaims and cross-claims (pursuant to rules 19 and 20)
Joinder of additional parties—parties MAY be joined in counterclaims and cross-claims (pursuant to rules 19 and 20)
Rule 13—Counterclaims/Cross-claims
Separate trials, separate judgments—judgment on a cross-claim or counterclaim MAY be made in accordance with rule 54(b) (even if the claims of the opposing party have been dismissed or otherwise disposed of) if:
A court orders separate trials pursuant to rule 42(b); and
The court has jurisdiction to do so
Rule 14—Third Party Practice
When a defendant MAY bring a third party
At any time after the commencement of an action, the defendant MAY become a “third party plaintiff” by serving a complaint on a third party (who is not in the original action). This happens when the defendant feels that the third party is liable to indemnify the defendant for any judgment
Rule 14—Third Party Practice
When a defendant MAY bring a third party
If the defendant serves the third party no later than 10 days after serving its original answer. No “leave of court” is needed to serve the third party. After 10 days, the defendant MUST get “leave of court” by filing a motion with notice to all parties.
Rule 14—Third Party Practice
The third party is then known as a “third party __________” and the defendant it known as a “third party __________”
The third party is then known as a “third party defendant” and the defendant it known as a “third party plaintiff”
Rule 14—Third Party Practice
Third party defendant’s options in response to defendant’s pleadings:
Answer—third MAY assert any defenses which the defendant MAY have to plaintiff’s claims
Counterclaim against plaintiff—arising out of the same transaction or occurrence of the plaintiff’s claim against defendant
Cross-claim against defendant
Rule 14—Third Party Practice
Plaintiff MAY/MAY NOT counterclaim against third party
Plaintiff MAY counterclaim against third party
Rule 14—Third Party Practice
Any party MAY move to:
Strike third party claim; or
Sever the claim; or
Separate trial
Rule 14—Third Party Practice
A third party MAY/MAY NOT bring in a 4th party who MAY also be liable to the defendant or the third party (complete diversity is not needed for third party)
A third party MAY bring in a 4th party who MAY also be liable to the defendant or the third party (complete diversity is not needed for third party)
Rule 14—Third Party Practice
When plaintiff MAY bring a third party
When a counterclaim is made against the plaintiff, the plaintiff MAY bring in a third party just as the defendant (under rule 14(a))
e 18—Joinder of Claims & Remedies
• Joinder of claims—a party MAY join as many independent or alternate claims as it has against opposing parties. These include:
Original claims
Counterclaims
Cross-claims
Third party claims
Rule 18—Joinder of Claims & Remedies
Joinder of remedies—whenever a claim is dependent on the outcome of a claim in another action, the two actions MAY/MAY NOT be joined into a single action
Joinder of remedies—whenever a claim is dependent on the outcome of a claim in another action, the two actions MAY be joined into a single action
Rule 19—Compulsory Joinder
Persons to be joined (if feasible)
Requirements:
Joined parties MUST be subject to PJ; and
Joinder cannot destroy SMJ
Rule 19—Compulsory Joinder
A third party MUST be joined if:
Complete relief cannot be accorded among the present parties without joining the third party; or
The third party claims a related interest in the action, and its absence from the suit MAY:
Impair or impede its ability to protect that interest; or
Leave any of the present parties subject to double liability or inconsistent verdicts
Rule 19—Compulsory Joinder
If a third party refuses to be a plaintiff, he MAY/MUST, upon the court’s discretion, be made:
A defendant; or
An involuntary plaintiff
If a third party refuses to be a plaintiff, he MAY upon the court’s discretion, be made:
A defendant; or
An involuntary plaintiff
Rule 19—Compulsory Joinder
If a third party objects to venue, and his presence makes venue improper, the joinder will be dismissed (and the entire case itself will also be dismissed if third party is considered an “indispensable party”)
If a third party objects to venue, and his presence makes venue improper, the joinder will NOT/? be dismissed (and the entire case itself will also be dismissed if third party is considered an “indispensable party”)
Rule 19—Compulsory Joinder
Determination by Court whenever joinder is not feasible
The court MAY /MUST determine that a third party is “indispensable” and dismiss the case if he cannot be joined
The court MAY determine that a third party is “indispensable” and dismiss the case if he cannot be joined
Rule 19—Compulsory Joinder
An “indispensable party” is
a party who in, “in equity or in conscience” the case should not proceed without
Rule 19—Compulsory Joinder
Factors considered (to determine if party is indispensable)
The extent of prejudices to the present party’s that the third party’s absence MAY bring
The extent that prejudices MAY be avoided or reduced by other means
The adequacy of judgment without the third party
Whether the plaintiff will have an adequate remedy if the case were dismissed for non-joinder
Rule 20—Permissive Joinder of Parties
Permissive joinder
All persons MAY/MUST join as a plaintiff or a defendant, if they assert or are subject to any right to relief which both:
Arises out of the same transaction or occurrence; and
Has a question of law or fact in common to all co-parties in the action
All persons MAY join as a plaintiff or a defendant, if they assert or are subject to any right to relief which both:
Arises out of the same transaction or occurrence; and
Has a question of law or fact in common to all co-parties in the action
Permissive joinder
There is A/NO need for all plaintiff’s or Ds to seek all claims of relief being claimed in the action; judgment will be accorded as per each party’s respective rights or liabilities
There is no need for all plaintiff’s or Ds to seek all claims of relief being claimed in the action; judgment will be accorded as per each party’s respective rights or liabilities
Rule 20—Permissive Joinder of Parties
Separate trials—the court MAY order separate trials or make other such orders to prevent:
A party from being embarrassed; or
Delay; or
Prejudice; or
A party from incurring undue expense from the inclusion of a third party, if no claims exists between the parties
Rule 20—Permissive Joinder of Parties
Separate trials—the court MAY/MUST order separate trials or make other such orders to prevent:
o A party from being embarrassed; or
o Delay; or
o Prejudice; or
o A party from incurring undue expense from the inclusion of a third party, if no claims exists between the parties
Separate trials—the court MAY order separate trials or make other such orders to prevent:
A party from being embarrassed; or
Delay; or
Prejudice; or
A party from incurring undue expense from the inclusion of a third party, if no claims exists between the parties
Rule 21—Misjoinder and Non-joinder of Parties
Misjoinder IS/IS NOT a ground for dismissal of an action
Misjoinder IS NOT a ground for dismissal of an action
Rule 21—Misjoinder and Non-joinder of Parties
Parties MAY be dropped or added at any stage of the action by:
Motion; or
Courts initiative
Rule 21—Misjoinder and Non-joinder of Parties
Any claim against a party MAY/MUST be severed and proceeded with separately
Any claim against a party MAY/MUST be severed and proceeded with separately
Rule 22—Interpleader (requires complete diversity)
Interpleader IS/IS NOT required if the plaintiff might be exposed to double liability
Interpleader IS required if the plaintiff might be exposed to double liability
Rule 22—Interpleader (requires complete diversity)
Interpleader MAY take place even though:
There is no common origin of causes; or
The actions are not identical, but are adverse and independent actions
Rule 22—Interpleader (requires complete diversity)
Defendant MAY/MAY NOT interplead if he might be held to double liability
Defendant MAY also interplead if he might be held to double liability
§ 1335—Interpleader (statutory interpleader, minimal diversity allowed)
• The district court has original jurisdiction over a civil action of interpleader if:
SMJ exists:
The controversy is greater than or equal to $500; and
Minimal diversity: at least 2 parties need diversity of citizenship (not all); and
“stakeholder” posts a bond (or deposits the property in the court)
§ 1335—Interpleader (statutory interpleader, minimal diversity allowed)
Interpleader MAY take place, although
There is no common origin among the titles or claims of the conflicting claimants; or
The actions are not identical, but are adverse and independent actions
Rule 24—Intervention
Intervention of right
Anyone MAY intervene (upon timely application) in an action when:
A US statute allows; or
The applicant claims a direct interest in a related property/transaction subject to adjudication, but only if:
The applicant’s interest isn’t already properly represented in the case; or
The applicant has a direct “significantly protectable” interest at stake; and
Non-intervention will impair/impede the applicant’s ability to protect that interest
Rule 24—Intervention
Intervention of right
A party MAY/MAY NOT intervene if complete diversity will not be maintained
A party MAY NOT intervene if complete diversity will not be maintained
Rule 24—Intervention
Permissive Intervention
Intervention will be permitted if:
A US statute allows; or
The applicant’s claim is related to the main action by question of law or fact
o The court has discretion, and should weigh any delays and prejudices to the original parties
Rule 24—Intervention
Procedure—motion to intervene
The intervening party SHALL serve a motion to intervene
Requirements of a motion to intervene—the motion MUST:
State the grounds for intervention; and
Be accompanied by a pleading describing the claim or defense for which intervention is sought
The same procedure SHALL be followed when a US statute provides for a right to intervene
If an action involves the constitutionality of an act of Congress, the court SHALL notify the US AG
If an action involves the constitutionality of a state law, the court SHALL notify the state AG
§ 1441—Cases that can be removed to federal court
Removal from state court by defendant
Whenever federal courts have original jurisdiction, a case MAY be removed from the state court by the Defendant (but not by the ¶) to the appropriate federal court in the district of original state forum
§ 1441—Cases that can be removed to federal court
Removable subject matters
Any federal question case MAY be removed without regard to residence of the parties
Diversity cases MAY be removed as long as any defendant is not a citizen of the present forum
1441—Cases that can be removed to federal court
Joinder of cause—when an independent federal question is joined with a non-federal subject matter, the court MAY choose to either:
Split the matters and hear only the federal element of case; or
Hear the entire case; or
Remand matters where state law predominates
§ 1446—Procedure for Removal
MUST file within 30 days after (the shorter of):
Defendant’s receipt of ¶’s initial pleadings
Service of summons, if pleadings are not required to be served
If ¶ amends the pleadings (making the case removable) the defendant MAY file for removal within 30 days after ¶’s amended pleadings are filed and delivered
§ 1367—Supplemental jurisdiction
(a)—
includes jurisdiction over any claims related to the claims in an action which form the same case or controversy (including joinder or intervention of claims)
§ 1367—Supplemental jurisdiction
(b)—diversity jurisdiction—when courts have SMJ based only on diversity, complete diversity MUST/MAY be continued for all counter-claims against 3rd parties
(b)—diversity jurisdiction—when courts have SMJ based only on diversity, complete diversity MUST be continued for all counter-claims against 3rd parties
§ 1367—Supplemental jurisdiction
(c)—court’s discretion—a court MAY/MUST decline supplemental jurisdiction if:
The claim raises a novel issue of state law; or
The claims is substantially predominant over the original (federal) claim; or
The court dismissed the original claim; or
Exceptional circumstances compel the federal court to decline jurisdiction
(c)—court’s discretion—a court MAY decline supplemental jurisdiction if:
The claim raises a novel issue of state law; or
The claims is substantially predominant over the original (federal) claim; or
The court dismissed the original claim; or
Exceptional circumstances compel the federal court to decline jurisdiction
§ 1391—Venue
Diversity cases—if a case is based solely on diversity, if MAY be brought:
In the district court where any defendant resides, if all defendants reside in the same state; or
In the district court where substantial events or property is located; or
If no other district can hear the case, then it MAY be heard wherever all defendants are subject to PJ at the commencement of the action
§ 1391—Venue
Federal Question cases—if a case is based on federal question, if MAY be brought:
In the district court where any defendant resides, if all defendants reside in the same state; or
In the district court where substantial events or property is located; or
If no other district is available, then the suit MAY be brought wherever any one defendant MAY be found
§ 1391—Venue
Corporate venue
Wherever a corporation is subject to PJ at commencement of the action (any district where “contacts” would give the corporation PJ under the minimum contacts test)
o If none available, look to the district with the most “significant” contacts
If there is no one particular district in the state in which the company has enough contacts for PJ, but the state as a whole qualifies under the minimum contacts test, the entire state is considered to have PJ over the defendant corporation
§ 1391—Venue
An alien:
An alien MAY be sued in any district
§ 1404—Change of venue
Change of venue MAY be made for the following reasons:
o Convenience of parties; or
o Convenience of witnesses; or
o In the interest of justice
§ 1404—Change of venue
Reasons:
§ 1404—Change of venue
• A district MAY transfer a case to any other district where the case MAY have been brought; or
• Both parties MAY consent to a change venue (subject to the court’s discretion)
• A district court MAY order any civil action to be tried at any place within the division in which it is pending
§ 1406—Waiver of venue
If venue is wrong, the district court MAY:
o Dismiss the case; or
o Transfer the case to an appropriate district
Rule 7—Pleadings allowed
Allowable pleadings include:
o The complaint
o The answer
o A reply to a counter-claim
o An answer to a cross-claim
o A third party complaint (if that party was not an original party under rule 14)
o A third party answer (if a third party complaint was served)
o A reply to an answer or third party answer (allowed only upon court orders)
Rule 7—Pleadings allowed
Requirements for an application for an order:
MUST be made in writing (fulfilled if the motion is stated in a written notice of the hearing of the motion)
Writing requirement not necessary if a motion is made at a hearing or trial
SHALL state grounds for motions with “particularity”
SHALL state relief sought
All motions MUST be signed in accordance with rule 11
Rule 8—General rules of pleadings
Claims for relief MUST contain:
Short plain statement of jurisdiction
Short and plain statement that the pleader is entitled to relief
Relief sought—alternative types of relief MAY be demanded
Rule 8—General rules of pleadings
Defenses; form of denials
The pleader SHALL state defenses to each claim asserted, and admit or deny the allegations
Rule 8—General rules of pleadings
Defenses; form of denials
If the pleader is without sufficient knowledge or information (to admit or deny) the pleader MAY/MUST so state—in such a case, the court will consider it as if the pleader denied the allegations
If the pleader is without sufficient knowledge or information (to admit or deny) the pleader MAY so state—in such a case, the court will consider it as if the pleader denied the allegations
Rule 8—General rules of pleadings
Defenses; form of denials
Denials MUST/MAY challenge the substance of the denied allegations
Denials MUST challenge the substance of the denied allegations
ule 8—General rules of pleadings
o If the pleader intends to deny only a part of an allegation, he SHALL /SHALL NOT specify what is true and deny only the remainder
If the pleader intends to deny only a part of an allegation, he SHALL specify what is true and deny only the remainder
Rule 8—General rules of pleadings
Types of denials which a pleader MAY make:
Specific denial ; or
Complete denial; or
General denial
Rule 8—General rules of pleadings
If the pleader makes a mistake and puts counterclaims as affirmative defenses, the court MAY/MUST treat it as if it were without mistakes
If the pleader makes a mistake and puts counterclaims as affirmative defenses, the court MAY treat it as if it were without mistakes
Rule 8—General rules of pleadings
Effect of failure to deny
Any denials omitted are deemed to have been admitted, unless:
A responsive pleading was not required; or
The omission involved a dispute of the amount of damages claimed
Rule 8—General rules of pleadings
Any allegations to which no answer is required (or allowed) SHALL /SHALL NOT be taken as denied
Any allegations to which no answer is required (or allowed) SHALL be taken as denied