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133 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Article III – Section I of the Constitution:
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Judicial Powers:
Establishes the Supreme Court; gives congress the right to ordain and establish inferior courts. |
Judicial Powers
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Article III,Section II of the Constitution:
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- explains original jurisdiction
o Arising under the constitution o Laws of the US, treaties and under their authority o to all cases affecting ambassadors, public ministers and consuls o All cases of admiralty and maritime jurisdiction o Controversies where the USA is a party o Controversies between states, state vs. citizen, citizen state A vs. citizen state B, citizen vs. alien |
explains original jurisdiction
(5 bullet points) |
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Article III, Section III of the Constitution:
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Treason
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No Hint
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5th Amendment to the Constitution
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-- due process, applies to federal government
• Right to grand jury - protects people from being held for committing a crime unless they are properly indicted • Double jeopardy - Can’t be tried twice for the same crime • Self-incrimination - Can’t be forced to testify against yourself • Due Process - Can’t be deprived of life, liberty or property, without due process • Eminent Domain - Can’t take private land for public use without just compensation. |
due process, applies to federal government
(5 key words) |
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14th Amendment to the Constitution
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-- limits upon states
• Persons born in US are subject to jurisdiction in US and state of residence. • No state shall deprive any person of life, liberty or property without due process of the law; nor deny to any person w/I its jurisdiction the equal protection of the laws. • Is in both Honda and BMW • Grossly excessive punitive damages violate the due process clause of the 14th amendment. (BMW) • In Honda, denial of judicial review of the size of punitive damages violates the due process clause. |
-- limits upon states
(5 bullet points) |
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FRCP Rule 1:
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Scope of Rules
• Objective: Is “To secure the just, speedy, and inexpensive determination of every action.” • Rules govern all Federal civil cases in the U.S. District Courts. |
-- Scope of Rules
(2) |
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FRCP Rule 2:
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-- One form of action
– these rules govern civil actions, not criminal |
-- One form of action
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FRCP Rule 3:
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-- Commencement of Action
– civil action is commenced by filing a complaint with the court |
-- Commencement of Action
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FRCP Rule 4a:
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You can only bring a claim in fed court in the district in which you could have brought it in state court unless it is a federal question
(A) Summons Form- contents of the summons • Includes names of parties, court and time to appear • Must notify the defendant that if he does not show, then the plaintiff gets a default judgment against him. • Court may allow the summons to be amended. (You can amend it.) |
Summons Form
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FRCP Rule 4b:
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(B) Issuing the Summons:
• Each ∆ gets a summons |
Issuing the Summons:
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FRCP Rule 4c:
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(C)Service:
1. Plaintiff’s obligations:- what documents must be served on ∆ o A summons is served with a copy of the complaint o Plaintiff is responsible for the service of both w/i time allowed (120 days from filing complaint) 2. Qualifications o Service can be made by anyone 18 yrs old and a non-party to the suit to serve |
Service
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FRCP Rule 4 a-m:
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• NOTICE IS NOT ESTABLISHED BY SENDING WAIVER - ONLY IF RETURNED.
a. Summons Form b. Issuing the Summons c. Service (2) - plaintiffs obligations - Qualifications d. Waiver of Service (3) - no waive venue or jurisdiction. - Sending form (a-g) - Time to answer e.Service on Individual in US f. Service on Individual in Foreign Country g. h. i. j. k. Territorial Limits l. m. Time limit for service |
Key Words
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FRCP Rule 4d1:
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(D) Waiver of Service:- how the requirement of service may be waived
1. If a defendant waives service, he does not waive any objection to venue or jurisdiction. |
Waiver of Service:
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FRCP Rule 4d2:
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2.Sending a waiver of service notice:
o If defendant receives a waiver of service notice, has a duty to waive service to avoid costs o If defendant does not waive, he must pay the costs of service o The notice and request of waiver •(4D 2a) – be in writing and addressed to ∆ •(4D 2b) – dispatched through 1st class mail or other reliable means. •(4D 2c.)- includes a copy of the complaint, and identify the forum court in which the complaint has been filed. •(4D 2f.)- Defendant has reasonable time to return the waiver, which is at least 30 days, from the date sent. Or 60 days if the defendant is served outside the U.S. •(4D 2g.)- the plaintiff must supply an extra copy of the notice and request of waiver of service. And a prepaid means of return. |
2.Sending a waiver of service notice:
(only 4d2(a)(b)(c)(f)(g) are listed) |
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FRCP Rule 4d3:
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3. Time for answer with waiver
• A defendant whom before being served with process, timely returns a waiver so requested has 60 days after the date on which the request of waiver of service was sent, to answer the complaint, and 90 days if addressed outside the U.S. • (So after receiving notice of waiver, if defendant waives within 30 days, he gets 60 days to answer the complaint.)- Based on date that service was sent. |
3. Time for answer with waiver
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FRCP Rule 4e(1):
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(E) Service on Individuals within the U.S.
- how summons must be served/ permissible methods of serving (this rule applies both if individual is being served in state or out of state within US) 1. Can serve according to state law for service o Plaintiff may serve according to the law of the state of the forum DCA or of the state where he is actually serving the ∆. -or- 4e(2) |
(E) Service on Individuals within the U.S.
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FRCP Rule 4e(2):
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(E) Service on Individuals within the U.S.
- how summons must be served/ permissible methods of serving (this rule applies both if individual is being served in state or out of state within US) 1. 4e(1) -OR- 2. Plaintiff may serve by personally serving a resident in his usual place of abode, or to an authorized agent (not at work but can leave with someone at the house- e.g. housekeeper that lives in the house). |
(E) Service on Individuals within the U.S.
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FRCP Rule 4f:
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(F) Service upon individuals in a Foreign Country
– by an international agreed means authorized by the Hague Con. |
(F) Service upon individuals in a Foreign Country
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FRCP Rule 4g:
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(g) Service Upon Infants and Incompetent Person.
Service upon an infant or an incompetent person in a judicial district of the United States shall be effected in the manner prescribed by the law of the state in which the service is made for the service of summons or like process upon any such defendant in an action brought in the courts of general jurisdiction of that state. Service upon an infant or an incompetent person in a place not within any judicial district of the United States shall be effected in the manner prescribed by paragraph (2)(A) or (2)(B) of subdivision (f) or by such means as the court may direct. |
(g) Service Upon Infants and Incompetent Person:
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FRCP Rule 4h1:
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(h) Service Upon Corporations and Associations.
Unless otherwise provided by federal law, service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under a common name, and from which a waiver of service has not been obtained and filed, shall be effected: (1) in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant, - or - |
(h) Service Upon Corporations and Associations:
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FRCP Rule 4h2:
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(h) Service Upon Corporations and Associations.
Unless otherwise provided by federal law, service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under a common name, and from which a waiver of service has not been obtained and filed, shall be effected: (1) - or - (2) in a place not within any judicial district of the United States in any manner prescribed for individuals by subdivision (f) except personal delivery as provided in paragraph (2)(C)(i) thereof. |
(h) Service Upon Corporations and Associations.
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FRCP Rule 4I1:
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(i) Serving the United States, Its Agencies, Corporations, Officers, or Employees.
(1) Service upon the United States shall be effected (A) by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and (B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia, and (C) in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to the officer or agency. |
(i) Serving the United States, Its Agencies, Corporations, Officers, or Employees:
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FRCP Rule 4I2:
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(i) Serving the United States, Its Agencies, Corporations, Officers, or Employees.
(2) (A) Service on an agency or corporation of the United States, or an officer or employee of the United States sued only in an official capacity, is effected by serving the United States in the manner prescribed by Rule 4(i)(1) and by also sending a copy of the summons and complaint by registered or certified mail to the officer, employee, agency, or corporation. (B)Service on an officer or employee of the United States sued in an individual capacity for acts or omissions occurring in connection with the performance of duties on behalf of the United States - whether or not the officer or employee is sued also in an official capacity - is effected by serving the United States in the manner prescribed by Rule 4(i)(1) and by serving the officer or employee in the manner prescribed by Rule 4 (e), (f), or (g). |
(2)
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FRCP Rule 4I3:
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(3) The court shall allow a reasonable time to serve process under Rule 4(i) for the purpose of curing the failure to serve:
(A) all persons required to be served in an action governed by Rule 4(i)(2)(A), if the plaintiff has served either the United States attorney or the Attorney General of the United States, or (B) the United States in an action governed by Rule 4(i)(2)(B), if the plaintiff has served an officer or employee of the United States sued in an individual capacity. |
(3) The court shall allow a reasonable time to serve process under Rule 4(i) for the purpose of curing the failure to serve:
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FRCP Rule 4J(1) &(2):
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(j) Service Upon Foreign, State, or Local Governments.
(1) Service upon a foreign state or a political subdivision, agency, or instrumentality thereof shall be effected pursuant to 28 U.S.C. § 1608. (2) Service upon a state, municipal corporation, or other governmental organization subject to suit, shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant. |
(j) Service Upon Foreign, State, or Local Governments:
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FRCP Rule 4k(1):
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(K) Territorial Limits of Effective Service—
Establishes by general jurisdiction 1. Service of a summons or filing a waiver of service is effective to establish personal jurisdiction over a defendant if: A. Defendant is already subject to the courts jurisdiction - or - (B) who is a party joined under Rule 14 or Rule 19 and is served at a place within a judicial district of the United States and not more than 100 miles from the place from which the summons issues, - or - (C) who is subject to the federal interpleader jurisdiction under 28 U.S.C. § 1335, - or - D. when authorized by the statute of the US |
(k) Territorial Limits of Effective Service.
(1) (a-d) |
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FRCP Rule 4k(2):
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(2) If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state.
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(k) Territorial Limits of Effective Service.
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FRCP Rule 4L:
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(l) Proof of Service:
If service is not waived, the person effecting service shall make proof thereof to the court. If service is made by a person other than a United States marshal or deputy United States marshal, the person shall make affidavit thereof. Proof of service in a place not within any judicial district of the United States shall, if effected under paragraph (1) of subdivision (f), be made pursuant to the applicable treaty or convention, and shall, if effected under paragraph (2) or (3) thereof, include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court. Failure to make proof of service does not affect the validity of the service. The court may allow proof of service to be amended. |
(L) Proof of Service:
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FRCP Rule 4m:
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(m) Time Limit for service – must be made within 120 days after filing complaint or action is dismissed w/o prejudice
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(m) Time Limit for Service:
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FRCP Rule 4n1:
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(n) Seizure of Property; Service of Summons not Feasible.
(1) If a statute of the United States so provides, the court may assert jurisdiction over property. Notice to claimants of the property shall than be sent in the manner provided by the statute or by service of a summons under this rule. |
(n) Seizure of Property; Service of Summons not Feasible.
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FRCP Rule 4n2:
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(n) Seizure of Property; Service of Summons not Feasible.
(2) Upon a showing that personal jurisdiction over a defendant cannot, in the district where the action is brought, be obtained with reasonable efforts by service of summons in any manner authorized by this rule, the court may assert jurisdiction over any of the defendant's assets found within the district by seizing the assets under the circumstances and in the manner provided by the law of the state in which the district court is located. |
(n) Seizure of Property; Service of Summons not Feasible.
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FRCP Rule 5(a)-(e):
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Serving and Filing Pleadings and other Papers
(a) Service: when required - Essentially every paper shall be served upon each party, unless the court otherwise orders (b) Making Service (1) Service is made on the attorney unless court orders service on the party (2) Service made under rule 5a (A) Delivery to a person by: (i) Handing it to the person (ii) Leaving it at office (B) Mail to last known address (C) If no address, leave with clerk of the court (D) Delivery by any other means consented by person served (c) Service to Numerous ∆: court directs who gets what (d) Filing; Certificate of service: all papers must be filed with the court w/i a reasonable time (e) Filing with the Court Defined: file papers with clerk or court, judge, electronically, or other locally accepted means. |
Serving and Filing Pleadings and other Papers
[(a)- (e)] a, b(1), b(2A) -> (i & ii); (b2B), (b2C), (b2D), c, d, & e |
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FRCP Rule 5a:
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Serving and Filing Pleadings and other Papers:
(a) Service: when required - Essentially every paper shall be served upon each party, unless the court otherwise orders |
Serving and Filing Pleadings and other Papers:
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FRCP Rule 5b:
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Serving and Filing Pleadings and other Papers:
(b) Making Service (1) Service is made on the attorney unless court orders service on the party (2) Service made under rule 5a (A) Delivery to a person by: (i) Handing it to the person (ii) Leaving it at office (B) Mail to last known address (C) If no address, leave with clerk of the court (D) Delivery by any other means consented by person served. |
Serving and Filing Pleadings and other Papers:
(b) Making Service (1) (2) (A) (i) (ii) (B) (C) (D) |
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FRCP Rule 5c:
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(c) Service to Numerous ∆: court directs who gets what
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Serving and Filing Pleadings and other Papers:
(c) Service to Numerous ∆: |
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FRCP Rule 5d:
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(d) Filing; Certificate of service: all papers must be filed with the court w/i a reasonable time
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Serving and Filing Pleadings and other Papers
(d): Filing; Certificate of service: |
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FRCP Rule 5e:
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(e) Filing with the Court Defined: file papers with clerk or court, judge, electronically, or other locally accepted means.
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Serving and Filing Pleadings and other Papers:
(e) Filing with the Court Defined: |
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FRCP Rule 6a:
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Time
(a) Computation: The date included is the last day of the period, unless it’s a weekend or holiday, then it’s the next available day. When the period of time is less then 11 days weekends and holidays are excluded from computation. Holidays: 10 main ones (Jan.1, MLKjr., Wash, Mem, Indep, labor, Colum, Vet, turkey, xmas) |
Time
(a) Computation: |
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FRCP Rule 6b:
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Time
(b) Enlargement: extended with or without motion request prior to expiration & after expiration with motion (in the absence of neglect) |
Time
(b) Enlargement: |
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FRCP Rule 6c:
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Time
(c) Rescinded |
Time
(c) Rescinded |
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FRCP Rule 6d:
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Rule 6: Time
(d) a written motion and notice of hearing requires at least 5 days notice and when served by mail an additional 3 are allowed for. |
Time
How long does a written motion and notice of hearing require and how much additional when served by mail? |
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FRCP Rule 6(a)-(d)
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Time
(a) Computation: The date included is the last day of the period, unless it’s a weekend or holiday, then it’s the next available day. When the period of time is less then 11 days weekends and holidays are excluded from computation. Holidays: 10 main ones (Jan.1, MLKjr., Wash, Mem, Indep, labor, Colum, Vet, turkey, xmas) (b) Enlargement: extended with or without motion request prior to expiration & after expiration with motion (in the absence of neglect) (c) Rescinded (d) a written motion and notice of hearing requires at least 5 days notice and when served by mail an additional 3 are allowed for. |
Time
(a) - (d) |
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FRCP Rule 7:
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Pleadings Allowed; Form of Motions:
(a) Pleadings: there shall be a complaint and answer; and a reply to counterclaim. Cross-claim needs to be answered (b) Motions and Other Papers: application to the court for an order shall by made by a motion, unless made in court, by writing. |
Pleadings Allowed; Form of Motions:
(a) Pleadings: there shall be a complaint (b) Motions and Other Papers: |
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FRCP Rule 7a:
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Pleadings Allowed; Form of Motions:
(a) Pleadings: there shall be a complaint and answer; and a reply to counterclaim. Cross-claim needs to be answered. |
Pleadings Allowed; Form of Motions:
(a) Pleadings: |
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FRCP Rule 7b:
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Pleadings Allowed; Form of Motions:
(b) Motions and Other Papers: application to the court for an order shall by made by a motion, unless made in court, by writing. |
Pleadings Allowed; Form of Motions:
(b) Motions and Other Papers: |
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FRCP Rule 8(a)-(e):
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General Rules of Pleadings
(A) Claims for Relief (B) Defenses: Form of Denials (C) Types of Affirmative Defenses (D) Effect of Failure to Deny (E) Consistency of Pleadings |
General Rules of Pleadings
(Key Words) |
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FRCP Rule 8a:
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General Rules of Pleadings
(A) Claims for Relief- claim, cross claim, counter claim, 3rd party claim: (check for all 3) o A claim must contain a short and plain statement of jurisdiction, o A short and plain statement of the claim entitling the pleader to relief o And a demand for judgment (the remedy sought by the plaintiff) Note: it is not fatal if the actual legal theory on which the claim is relying is not right as long as the facts are enough to give an idea of the subject matter. |
General Rules of Pleadings:
(A) Claims for Relief [A; 3 bullet points; and then a Note] |
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FRCP Rule 8b:
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General Rules of Pleadings
(B) Defenses: Form of Denials o The defendant shall state defenses to each claim asserted, and admit or deny the allegations o If party is without knowledge or information, shall state this- effect of a denial o Denials must challenge the substance of the denied allegations. o If defendant intends to deny just a part of the allegation, he must say what is true and deny only the remainder. |
General Rules of Pleadings
(B) Defenses: Form of Denials |
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FRCP Rule 8c:
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General Rules of Pleadings
(C) Types of Affirmative Defenses • Affirmative defenses must be set forth in the answer. (Layman v. Southwestern Bell, in which the Easement (affirmative defense) was not set forth in the answer.) • If there is a mistake in answering (defense as counterclaim or counterclaim as a defense the court may treat pleadings as if correct) |
General Rules of Pleadings
(C) Types of Affirmative Defenses |
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FRCP Rule 8d:
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General Rules of Pleadings
(D) Effect of Failure to Deny ∆ will be deemed to have admitted any allegation that is not specifically denied in the answer, unless the allegation relates to damages. Note: this is also true of counter claims but not true of ∆’s assertion of an affirmative defense (if ∆ raises affirmative defense, Π can remain silent and will be deemed to have denied allegations) |
General Rules of Pleadings
(D) Effect of Failure to Deny |
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FRCP Rule 8e:
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Consistency of Pleadings- Concise and Direct
1. Averments shall be simple, complete and concise 2. Pleader may state as many separate claims as it wants in the pleadings, a relationship between the claims is not necessary, and if one statement is improper, it does not negate the entire pleading. – may plead inconsistently |
General Rules of Pleadings:
Consistency of Pleadings- Concise and Direct |
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FRCP Rule 8 (Notes from class):
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Notes from Class
• Rule 8 says that you just have to give enough facts so that the other side knows what is going on, but if you give more facts in your complaint, it can help you because: • (Kisses judges ass), saves the judge time, and gives you a broader scope of discovery- because you can discover whatever you include in your complaint. |
Notes from Class
• Give enough facts • Kisses judges ass |
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FRCP Rule 9a:
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Rule 9. Pleading Special Matters
(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. |
Rule 9: Pleading Special Matters case law fills in to tell what you need to be specific about:
(a) Capacity. |
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FRCP Rule 9b:
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(b) Fraud, Mistake, Condition of the Mind.
(B) Accusations of fraud or mistake- heightened pleading standards for fraud or mistake o Must be stated with particularity. (Specifically). o Stradford v. Zurich Insurance Co.: Allegation of fraud must provide details of the fraud, thus there are heightened pleading requirements for fraud. Plaintiff failed to identify the details concerning the fraud thus violating 9B. Conditions of mind: Malice, intent, knowledge and other conditions of mind can be generally averred Note: civil rights claims do not have to be plead with specificity |
Rule 9: Pleading Special Matters case law fills in to tell what you need to be specific about:
(b) Fraud, Mistake, Condition of the Mind. |
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FRCP Rule 9c:
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(c) 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 made specifically and with particularity. |
Rule 9: Pleading Special Matters case law fills in to tell what you need to be specific about:
(c) Conditions Precedent. |
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FRCP Rule 9d:
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(d) Official Document or Act.
In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law. |
Rule 9: Pleading Special Matters case law fills in to tell what you need to be specific about:
(d) Official Document or Act. |
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FRCP Rule 9e:
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(e) Judgment.
In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. |
Rule 9: Pleading Special Matters case law fills in to tell what you need to be specific about:
(e) Judgment. |
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FRCP Rule 9f:
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(f) Time and Place.
For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter. |
Rule 9: Pleading Special Matters case law fills in to tell what you need to be specific about:
(f) Time and Place. |
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FRCP Rule 9h:
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(h) Admiralty and Maritime Claims.
A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim for those purposes whether so identified or not. The amendment of a pleading to add or withdraw an identifying statement is governed by the principles of Rule 15. A case that includes an admiralty or maritime claim within this subdivision is an admiralty case within 28 U.S.C. § 1292(a)(3). |
Rule 9: Pleading Special Matters case law fills in to tell what you need to be specific about:
(h) Admiralty and Maritime Claims. |
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FRCP Rule 9(a) - (h):
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Pleading Special Matters
(a) Capacity. (b) Fraud, Mistake, Condition of the Mind. (c) Conditions Precedent. (d) Official Document or Act. (e) Judgment. (f) Time and Place. (g) Special Damage. (h) Admiralty and Maritime Claims. |
Rule 9: Pleading Special Matters case law fills in to tell what you need to be specific about:
(Key Words) |
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FRCP Rule 9g:
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(g) Special Damage.
When items of special damage are claimed, they shall be specifically stated. |
Rule 9: Pleading Special Matters case law fills in to tell what you need to be specific about:
(g) Special Damage. |
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FRCP Rule 10(a)-(c):
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Form of Pleadings
(a) Caption; Name of parties. (b) Paragraphs; separate statements. (c) Adoption by reference; exhibits. |
Form of Pleadings
(Key Words) |
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FRCP Rule 10a:
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Form of Pleadings
(a) Caption; Name of parties: all pleadings have caption -- court, title of action, file #, rule 7a designation; complaint has both parties name. Other pleadings need only first party. |
Form of Pleadings
(a) Caption; Name of parties: |
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FRCP Rule 10b:
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Form of Pleadings
(b) Paragraphs; separate statements: paragraphs are separate and numbered |
Form of Pleadings
(b) Paragraphs |
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FRCP Rule 10c:
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Form of Pleadings
(c) Adoption by reference; exhibits: statements in pleadings can be referred to different parts by reference. |
Form of Pleadings
(c) Adoption by reference; exhibits. |
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FRCP Rule 11(a)-(d):
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Sanctions
(A) Signature. (B) Representations to the Court o By submitting to a court a paper submitted to the court to the best of the parties knowledge is: i. Proper Purpose ii. Warranted by Existed Law iii. Well grounded in Fact iv. Based on Evidence (C) Sanctions 1. How Initiated A. By a motion: o Motion for sanctions must be made separately... o Motion must state the violation of rule 11B. o Shall be served as indicated under Rule 5 o Motion .. filed if the pleading is not corrected within 21 days of service... o Safe Harbor Provision o If warranted, the court may award.. o Absent exceptional circumstances... B. On Court’s Initiative: o If the court initiates the sanctions the burden.. 2. Nature of Sanctions and limitations o Sanctions are limited to... A. Can’t award monetary sanctions against.. • A court may not sanction a represented party for making a frivolous argument.. B. Monetary sanctions may not be awarded 3. (D) Inapplicability to Discovery. |
Sanctions
(a)-(d) |
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FRCP Rule 11(a):
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Sanctions - cannot be made against a represented party but can be made against an unrepresented party or attorney/law firm:
(A) Signature: Every pleading, written motion or other paper shall be signed by an attorney (address and phone number). Pleadings, unless otherwise stated need not be verified or accompanied by an affidavit. An unsigned paper will be stricken unless quickly corrected. |
Sanctions - cannot be made against a represented party but can be made against an unrepresented party or attorney/law firm:
(A) Signature. |
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FRCP Rule 11(b):
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Sanctions
(B) Representations to the Court o By submitting to a court a paper submitted to the court to the best of the parties knowledge is: i. Proper Purpose- Not made for any improper purpose such as to harass, drive up costs, or cause unnecessary delay. ii. Warranted by Existed Law-warranted by existing law, or by a non-frivolous argument for the extension, modification, or reversal of existing law, or the establishment of a new law. iii. Well grounded in Fact- The allegations and other factual contentions either have evidentiary support, or if specifically so identified are likely to have evidentiary support after reasonable opportunity for further investigation or discovery. iv. Based on Evidence- The denials of factual contentions are based on evidence or reasonably based on lack of information or belief. |
Sanctions
(B)Representations to the Court |
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FRCP Rule 11(c)1:
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(C) Sanctions- If rule 11B is violated the court may impose sanctions upon attorneys, law firms, or parties
1. How Initiated A. By a motion: o Motion for sanctions must be made separately from other sanctions (for example, you can’t bring a Rule 11 motion with a 12-b6.) o Motion must state the violation of rule 11B o Shall be served as indicated under Rule 5 o Motion may only be filed if the pleading is not corrected within 21 days of service (must have 21 days to amend or withdraw the pleading). The safe harbor provision does not apply when the court orders the sanctions, only when one party is seeking the sanctions. o This is called the Safe Harbor Provision under Rule 11- before you can seek sanctions you must notify the other party and give them 21 days to withdraw or amend the pleadings. o If warranted, the court may award the prevailing party the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion o Absent exceptional circumstances a law firm shall be jointly responsible for violations committed by its partners, associations and employees. B. On Court’s Initiative: (Inherent power of the court) o If the court initiates the sanctions the burden of the proof falls on the pleader to show that he is not in violation. (Court can sanction on it’s own whim- Inherent Power of the Court)- safe harbor provision does not apply |
Sanctions
c1A: By a motion: & c1B:Court’s Initiative: (Inherent power of the court) |
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FRCP Rule 11(c)2:
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2. Nature of Sanctions and limitations
o Sanctions are limited to what is sufficient to deter repetition of the conduct, not to punish. (If sanctions are really high, than it may be punishment- in mid-term $100,000 could be considered punishment.) A. Can’t award monetary sanctions against a represented party for an unsuccessful attempt to change law (b2). (Can sanction the lawyer, but not the client.) • A court may not sanction a represented party for making a frivolous argument, but they may sanction the Attorney. (Note: But a court may sanction a represented party for improper purpose and for negligent investigation.) B. Monetary sanctions may not be awarded on the court’s initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorney’s are, to be sanctioned |
Sanctions
c2. Nature of Sanctions and limitations A & B |
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FRCP Rule 11(c)3:
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3. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.
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FRCP Rule 11(c)4:
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(D) Inapplicability to Discovery- Rule 11 doesn’t apply to discovery
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(D) Inapplicability to Discovery
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FRCP Rule 11 (Advisory Notes):
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Advisory Committee Notes
• Responsibility to refrain from conduct that frustrates aim of Rule 1. • Sometimes a litigant may have a good reason to believe a fact to be true or false but may need more time for discovery, formal or informal. However, tolerance of factual contentions in initial pleadings does not relieve litigants from the obligation to conduct an appropriate investigation into the facts that is reasonable under the circumstances. • If evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery the party has a duty not to persist with that contention. • (b) does not require a formal amendment to pleading when evidentiary support is not obtained but litigant cannot further advocate such complaint. • Rule 11 in conjunction with 12b: You can rule 11 at any time during the trial. Summary judgment is judgment a matter of law- if it is obvious that there is evidence and opposing party brings summary judgment- then you would have an argument for rule 11. • If trying to change law- not frivolous. Need not state trying to change law not specifically required to be identified but good if done. When determining if frivolous court will look to see extent to which litigant has looked to minority opinions, law review articles, and consultation with other attorneys. • Court has significant discretion in determining what sanctions, if any, should be imposed. Should not be more severe than reasonably necessary to deter repetition of behavior. Non-monetary options. |
Rule 11 Advisory Notes
Bunch of Shit |
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FRCP Rule 11 Class Notes
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Class Notes
• 3 ways you can be sanctioned: 1) Bad Reason (such as filing to harass), 2) Inadequate investigation (your facts don’t have evidentiary support or are not likely to) 3) Bad Legal Argument (Frivolous legal argument – such as suing for diversity jurisdiction with $10,000 in question when it must be $75,000.) • Three reasons not to file frivolous cases: 1) you will not win any money 2) you will develop a bad reputation, 3) you will waste your own, and the court’s time. • Malicious Prosecution- Can try to get punitive damage award, by claiming malicious prosecution on the part of the other party to the suit. |
Class Notes
• 3 ways you can be sanctioned. • Three reasons not to file frivolous cases. • Malicious Prosecution. |
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FRCP Rule 12(a)-(h):
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Defenses and Objections - Motions for Judgments on the Pleadings
(A) When presented: (1) A defendant shall serve an answer: (a) Answer served within 20 days after service of summons. (b) Summons waived (R4), 60 days to serve answer - 90 days out of country. (2) Cross Claims/Counterclaims (a) 20 days after service to answer. (3) If the U.S. gov’t gets sued - 60 days (4) Exceptions to the time limit (a) denied motion or postpones disposition until the trial - answer is due within 10 days after the court notifies. (b) Grants a more definite statement .. get 10 days.. (B) How Presented- Every Defense to a claim for relief in any pleading shall be asserted in the Answer if one is required, except the following.. (1) Motion for lack of Subject Matter Jurisdiction. (2) Motion for lack of Personal Jurisdiction. (3) Motion for Improper Venue (4) Motion for Insufficiency of Process (5) Motion for insufficiency of service of process (6) Motion for failure to state a valid claim upon which relief can be granted. (7) Failure to join a party under Rule 19. (C) Motion for judgment on the Pleadings. (D) Preliminary Hearing. (E) Motion for More Definite Statement. (F) Motion to Strike: (G) Consolidating Rule 12 motions (H) Waiver or Preservation of Defenses- 1. All of the following are waived if not made by pretrial motion- a. Lack of Personal Jurisdiction (Rule 12-b2) b. Improper Venue (Rule 12-b3) c. Insufficiency of Process (Rule 12-b4) d. Insufficiency of Service (Rule 12-b5) 2. Motions which may be made at trial or in Pleadings: 3. Motion for lack of Subject Matter Jurisdiction. |
Defenses and Objections - Motions for Judgments on the Pleadings
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FRCP Rule 12a:
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Defenses and Objections- Motions for Judgments on the Pleadings
(A) When presented: (1) A defendant shall serve an answer: (a) The answer must be served within 20 days after service of summons. (b) If service of summons has been waived under Rule 4, then you get 60 days to serve an answer- 90 days out of country. (2) Cross Claims/Counterclaims- a cross claim must arise out of the same transaction or occurrence as the original action. (a) You get 20 days after service to answer them. (counters, cross claims, answers, and replies.) (3) If the U.S. gov’t gets sued they get 60 days to respond after being served (Officer or employee acting in official capacity.) (4) Exceptions to the time limit (a) If a court denies a motion or postpones disposition until the trial on the merits- then the answer is due within 10 days after the court notifies of decision to proceed. (b) If court grants motion for a more definite statement you get 10 days to respond, after you receive the more definite statement. |
Defenses and Objections- Motions for Judgments on the Pleadings
(A) When presented: |
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FRCP Rule 12b:
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Defenses and Objections- Motions for Judgments on the Pleadings
(B) How Presented- Every Defense to a claim for relief in any pleading shall be asserted in the Answer if one is required, except the following defenses: (1-7) may be made by motion; (∆ may avoid answering immediately by filing a motion to dismiss if ∆ has preliminary objections to the suit. Filing a 12b pre-answer motion is an alternative to answering. The following may be raised in a pre-answer or in answer only if no 12b motion was brought up pre-answer. (1) Motion for lack of Subject Matter Jurisdiction, tied to §1331 kills action (2) Motion for lack of Personal Jurisdiction; tied to §1332 --> kills action (3) Motion for Improper Venue --> kills action (4) Motion for Insufficiency of Process (5) Motion for insufficiency of service of process- notice --> curable defect (6) Motion for failure to state a valid claim upon which relief can be granted. – “so what motion” --> one chance to amend before dismissal. --> (Even if Π were to prove all of the allegations in the complaint, she still would not be entitled to any relief. Unlike other pre-answer motions, 12b6 challenges the substantive merits of the complaint- a Π who fails under 12b6 will almost always be given a chance to amend) --> A complaint should not be dismissed under 12b6 “unless is appears beyond doubt that the Π can prove no set of facts in support of his claim which would entitle him to relief.” --> the court may not consider the likelihood that Π will be able to prove his factual allegations; It must assume for purposes of deciding the motion that Π will prove them --> the only question posed by the motion is whether the complain itself states a legally sufficient claim- the court does not consider any other pleadings or evidence in deciding the motion- it does not decide if the facts are true- for the purpose of this motion facts are assumed to be true (7) Failure to join a party under Rule 19- joinder Curable defect |
Defenses and Objections- Motions for Judgments on the Pleadings
(7 types of motions) |
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FRCP Rule 12c:
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Defenses and Objections - Motions for Judgments on the Pleadings:
(C) Motion for judgment on the Pleadings: party may make motion for judgment on pleadings --> like rule 56 motion |
Defenses and Objections - Motions for Judgments on the Pleadings:
(c) Motion for judgment on the Pleadings. |
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FRCP Rule 12d:
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Defenses and Objections - Motions for Judgments on the Pleadings:
(D) Preliminary Hearing: motions in section B or C shall be provided a hearing |
Defenses and Objections - Motions for Judgments on the Pleadings:
(D) Preliminary Hearing. |
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FRCP Rule 12e:
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Defenses and Objections - Motions for Judgments on the Pleadings:
(E) Motion for More Definite Statement: Request clearer statement if pleadings are too vague/ambiguous to respond to. |
Defenses and Objections - Motions for Judgments on the Pleadings:
(E) Motion for More Definite Statement: |
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FRCP Rule 12(f):
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Defenses and Objections- Motions for Judgments on the Pleadings:
(F) Motion to Strike: strike redundant, immaterial, impertinent, etc material by motion w/i 20 days after service |
Defenses and Objections- Motions for Judgments on the Pleadings:
(f) Motion to Strike |
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FRCP Rule 12(g):
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Defenses and Objections- Motions for Judgments on the Pleadings:
(G) Consolidating Rule 12 motions- if you move to dismiss you must consolidate (can’t bring later) • If a party makes a Rule 12 motion but omits any other defense or objection under Rule 12, the party waives the right to make any other subsequent Rule 12 motions. (Except for SMJ and 12b6) SMJ and 12b6 if not brought in pre-trial can be later brought in an answer or another part of trial. |
Defenses and Objections - Motions for Judgments on the Pleadings:
(g) Consolidating Rule 12 Motions |
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FRCP Rule 12(h):
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Defenses and Objections- Motions for Judgments on the Pleadings:
(H) Waiver or Preservation of Defenses- 1. All of the following are waived if not made by pretrial motion- a. Lack of Personal Jurisdiction (Rule 12-b2) b. Improper Venue (Rule 12-b3) c. Insufficiency of Process (Rule 12-b4) d. Insufficiency of Service (Rule 12-b5) 2. Motions which may be made at trial or in Pleadings: • 12-b6 motion or 12-b7 motion can be made at anytime throughout the trial 3. Motion for lack of Subject Matter Jurisdiction can be made AT ANY TIME.- subject matter jurisdiction is not capable of being waived. |
Defenses and Objections- Motions for Judgments on the Pleadings:
(h) Waiver or Preservation of Defenses. |
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FRCP Rule 12 (Class Notes):
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Rule 12: Defenses and Objections- Motions for Judgments on the Pleadings
Class Notes on Rule 12 Rule 12-B6-Motion for Failure to State a Valid Claim upon which relief can be granted/ Demurrer/ Motion to Dismiss. • A motion to dismiss cannot dispute the facts. (Cannot be a dispute of a material fact) • Why to file a motion to Dismiss: 1) To save yourself money, so you don’t have to go through discovery 2) To run up the other side’s costs. 3) To preserve legal reasoning 4) Educate the Judge- if you file a motion to dismiss, and because the judge has not seen anything yet, the judge sees your whole case first. (Lays out claim early on to bias the judge in your favor.) • Standard for granting a motion to dismiss: o Deny “unless it appears beyond doubt that Π can prove no set of facts in support of his claim which would entitle him to relief.” |
Rule 12: Defenses and Objections- Motions for Judgments on the Pleadings
Class Notes |
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FRCP Rule 13(a)-(i):
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Counterclaim and Cross-claim
(a) Compulsory Counterclaims. (b) Permissive Counterclaims. (c) Counterclaim Exceeding Opposing Claim. (d) Counterclaim against the USA. (e) Counterclaims maturing or Acquired after Pleading. (f) Omitted Counterclaim. (g) Cross-claim Against Co-Party. (h) Joinder of add’l Parties (i) Separate Trials; Separate Judgments |
Counterclaim and Cross-claim
(Key Words) |
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FRCP Rule 13(a):
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Counterclaim and Cross-claim
(a) Compulsory Counterclaims: counterclaims arising out of the transaction that is the SM of the opposing party’s claim |
Counterclaim and Cross-claim
(a) Compulsory Counterclaims: |
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FRCP Rule 13(b):
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Counterclaim and Cross-claim
(b)Permissive Counterclaims: counterclaim not arising out of the opposing party’s claim |
Counterclaim and Cross-claim:
Permissive Counterclaims. |
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FRCP Rule 13(c):
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Counterclaim and Cross-claim
(c) Counterclaim Exceeding Opposing Claim: can’t defeat recovery sought by opposing party. |
Counterclaim and Cross-claim:
(c) Counterclaim Exceeding Opposing Claim. |
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FRCP Rule 13(d):
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Counterclaim and Cross-claim
(d) Counterclaim against the USA: not to enlarge claims against govt |
Counterclaim and Cross-claim
(d)Counterclaim against the USA. |
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FRCP Rule 13(e):
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Counterclaim and Cross-claim
(e) Counterclaims maturing or Acquired after Pleading: counterclaim can be added later with permission of Ct. by supp.pleading |
Counterclaim and Cross-claim:
(e) Counterclaims maturing or Acquired after Pleading. |
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FRCP Rule 13(f):
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Counterclaim and Cross-claim
(f) Omitted Counterclaim: If fail to set up a counterclaim by accident can be added by amendment. |
Counterclaim and Cross-claim:
(f) Omitted Counterclaim. |
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FRCP Rule 13(g):
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Counterclaim and Cross-claim
(g) Cross-claim Against Co-Party: state any claim against co-party arising out of the same transaction SM to original claim or counterclaim. |
Counterclaim and Cross-claim:
(g) Cross-claim Against Co-Party. |
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FRCP Rule 13(h):
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Counterclaim and Cross-claim:
(h) Joinder of add’l Parties |
Counterclaim and Cross-claim:
(h) Joinder of add’l Parties. |
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FRCP Rule 13(i):
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Counterclaim and Cross-claim:
(i) Separate Trials; Separate Judgments |
Counterclaim and Cross-claim
(i) Separate Trials; Separate Judgments. |
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FRCP Rule 14(a)-(b):
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3rd Party Practice:
(a) When ∆ may bring in 3rd Party: any time after commencing of the action, need not obtain leave to make the service if filed not later then 10 days after serving the original answer. Otherwise, by obtaining a leave (b) What Π may bring in 3rd Party: same as ∆ |
3rd Party Practice:
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FRCP Rule 14(a):
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3rd Party Practice:
(a) When ∆ may bring in 3rd Party: any time after commencing of the action, need not obtain leave to make the service if filed not later then 10 days after serving the original answer. Otherwise, by obtaining a leave |
3rd Party Practice:
When ∆ may bring in 3rd Party. |
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FRCP Rule 14(b):
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3rd Party Practice:
(b) What Π may bring in 3rd Party: same as ∆ |
3rd Party Practice:
(b) What Π may bring in 3rd Party: |
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FRCP Rule 15(a)-(d):
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Amending Pleadings
(A) Amendments (B) Amendments to conform to the Evidence (C) Relation back of Amendments (D) Supplemental Pleadings |
Amending Pleadings:
(Key Words). |
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FRCP Rule 15(a):
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Amending Pleadings
(A) Amendments • Parties have a right to one amendment before the answer is served, or if it is a non-responsive pleading (no responsive pleading is permitted), you have 20 days to amend after you serve your pleading. • Otherwise they must ask for a “leave of court” for permission to amend which is done freely as “justice so requires”, or obtain written consent from the adverse parties. • Answering amendments - must be done within the longer of 10 days after service of amendment, or the time remaining from the original 20 days from the initial pleading. |
Amending Pleadings:
(A) Amendments. |
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FRCP Rule 15(b):
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Amending Pleadings
(B) Amendments to conform to the Evidence: • Issues expressly or impliedly consented to by the parties, are considered to have been raised in the pleadings (although they never were) • Parties may raise a Motion to amend the pleadings (to conform to the evidence) at any time, even after the judgment. - This does not alter the result of the trial of these issues. • If a party objects to amendments, new evidence, or issues not explicitly included in pleadings, the court may still allow it to be heard if the other party cannot show that it would prejudice them. |
Amending Pleadings:
(B) Amendments to conform to the Evidence. |
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FRCP Rule 15(c):
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Amending Pleadings
(C)Relation back of Amendments: Amendments will be considered to relate back to the date of the original pleading if: (1) Permitted by law under the statute of limitations-or (2) They are related to the original claims. (Arising out of the same conduct, transaction, or occurrence.) (3) There were misidentified parties in the original claim |
Amending Pleadings:
(C)Relation back of Amendments. |
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FRCP Rule 15(d):
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Amending Pleadings
(D) Supplemental Pleadings: • Upon Motion, Pleadings may be amended for events occurring after service of the original pleadings if: Reasonable notice is given, and the terms are just. • Supplemental pleadings must set forth the transactions that have happened since the date of the original pleading has happened. • Permission may be granted to supplement a pleading, even though the original pleading has a defective statement claiming relief or defense. • If the court deems it advisable, they may order the opposing side to respond within a specified time. |
Amending Pleadings:
(D) Supplemental Pleadings. |
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FRCP Rule 20(a)-(b):
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Permissive Joinder of Parties
(a) Permissive Joinder. (b) Separate trials. |
Permissive Joinder of Parties:
(Key Words) |
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FRCP Rule 20(a):
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Permissive Joinder of Parties
(a) Permissive Joinder: parties may join when there is a claim against them or they have a right to relief as part of the proceedings; they don’t have to have an interest in all the proceedings/relief; court can use discretion in separating parties when they have no claim or liability. |
Permissive Joinder of Parties:
(a) Permisssive Joinder |
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FRCP Rule 20(b):
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Permissive Joinder of Parties
(b) Separate trials: courts can order separate trials to prevent embarrassment, delay or unnecessary costs. |
Permissive Joinder of Parties:
(b)Separate trials. |
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FRCP Rule 42(a)-(b):
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Consolidation, Separate Trials
(a) Consolidation. (b) Separate Trials. |
Consolidation, Separate Trials:
(Key Words) |
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FRCP Rule 42(a):
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Consolidation, Separate Trials
(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. |
Consolidation, Separate Trials:
(a) Consolidation. |
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FRCP Rule 42(b):
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Consolidation, Separate Trials
(b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States. |
Consolidation, Separate Trials:
(b) Separate Trials. |
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FRCP Rule 56(a)-(g):
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Summary Judgment
(a) For Claimant (Π) (b) For (∆): (c) Motions and Proceedings: (d) Case not fully Adjudicated on Motion. (e) Defending Motion for Summary Judgment. (f) When Affidavits are Unavailable. (g) Affidavits in Bad Faith. |
Summary Judgment
(Key Words) |
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FRCP Rule 56 (Notes):
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- cannot be a dispute of the material facts- 56c- (no factual dispute of the particular element of the claim that is challenged by the motion)
- SJ is not meant to try the facts but only to determine whether there are genuinely contested issues of material fact. The burden of party opposing SJ is only to show that he has legally competent evidence upon which a jury could resolve the factual issues in his favor. SJ can be granted when the parties agree on the underlying facts but disagree on the legal implications of those facts. - If one aspect of the case is decided by SJ, the other parts may be left for trial. - SJ may be supported by affidavits, depositions, answers to interrogations, and admissible documents. The materials need not always be admissible at trial itself but demonstrate that the party has access to evidence that would be admissible. |
Summary Judgment
(4 bullet points) |
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FRCP Rule 56(a):
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Summary Judgment
(a) For Claimant (Π)- A party may move for summary judgment (with or without supporting affidavits) after either: (1) 20 days from the commencement of the action (2) After service of a motion by the adverse party. (can be with or without supporting affidavits) |
Summary Judgment
(a) For Claimant (Π) |
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FRCP Rule 56(b):
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Summary Judgment
(b) For (∆): The defending party may move at any time for summary judgment with or without supporting affidavits. |
Summary Judgment
(b) For (∆): |
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FRCP Rule 56(c):
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Summary Judgment
(c) Motions and Proceedings: A motion for Summary Judgment must be served to the adverse party at least 10 days before the scheduled hearings. The adverse party may serve opposing affidavits at any time (but at least one day before) the hearing. Summary Judgment will be granted if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law if the following together. |
Summary Judgment
(c) Motions and Proceedings: |
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FRCP Rule 56(d):
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Summary Judgment
(d) Case not fully Adjudicated on Motion: judgment can be rendered on some of the facts and the rest can proceed based on judgment made. |
Summary Judgment:
(d) Case not fully Adjudicated on Motion. |
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FRCP Rule 56(e):
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Summary Judgment
(e) Defending Motion for Summary Judgment: Must include personal knowledge of facts. Affidavits may be supplemented by depositions, interrogatories, or other affidavits. Responding to a motion for Summary Judgment; the adverse party must set forth specific facts showing that there is a genuine issue for trial (cannot rely on pleadings). If adverse party cannot show that there is a genuine issue, SJ shall be entered against her if appropriate (given an opportunity for discovery). This should be evidence that a jury could hear at trial- materials are not always admissible themselves but demonstrate that party has access to evidence that would be admissible. When information needed to justify opposition to SJ isn’t available |
Summary Judgment
(e) Defending Motion for Summary Judgment. |
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FRCP Rule 56(f):
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Summary Judgment
(f) When Affidavits are Unavailable: If one opposing a motion for summary judgment can show in its affidavit that it can’t get facts essential to justifying the opposition, the court may turn down the summary judgment motion, or order a continuance that permits affidavits to be obtained (for more discovery), depositions to be taken, or discovery to be had. |
Summary Judgment
(f) When Affidavits are Unavailable. |
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FRCP Rule 56(g):
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Summary Judgment
(g) Affidavits in Bad Faith: (to delay the proceeding) If a party makes an improper affidavit (such as one that would delay proceedings or that was made in bad faith), then the court may hold the party in contempt and may sanction them to pay fees. |
Summary Judgment
(g) Affidavits in Bad Faith: |
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FRCP Rule 65(a)-(c):
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Injunctions
(a) Preliminary Injunctions (1) Notice: not unless adverse notified (2) Consolidation of Hearing with Trial on Merits: (b) Temporary Restraining Order. (1) injury or damage opposing fight it. (2) Tried notice (A) Define injury. (B) Not to exceed 10 days (c) Permanent Injunction. (1) (2) (3) (4) (5) |
Injunctions
(Key Words) |
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FRCP Rule 65(a):
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Injunctions
(a) Preliminary Injunctions (1) Notice: not issued unless adverse party notified (2) Consolidation of Hearing with Trial on Merits: |
Injunctions
(a) Preliminary Injunctions |
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FRCP Rule 65(b):
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Injunctions
(b) Temporary Restraining Order; Notice; Hearing; Duration: temp. restraining order may be granted w/o notice when (1) Immediate and irreparable injury loss or damage will result before opposing party can fight it. (2) Show they tried to give notice or that notice should not be required. (A) Define the injury and why it is irreparable and needed w/o notice (B) Not to exceed 10 days |
Injunctions
(b) Temporary Restraining Order; |
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FRCP Rule 65(c):
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Injunctions
(c) Permanent Injunction: in order to obtain must show (1) no adequate remedy at law (2) irreparable injury (has come to mean “real and immediate threat”) (3) balanced of equity and hardship (4) probability of success (5) public interest |
Injunctions
(c) Permanent Injunction. |
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FRCP Rule 82:
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Jurisdiction & Venue Unaffected
Rules shall not limit or extend the jurisdiction of the US district courts or the venue of the actions therein. |
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FRCP Rule 83(a)-(b):
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Rules of District Courts; Judge’s Directive
(a) Local Rules (b) Procedures when there is no controlling law. |
Rules of District Courts; Judge’s Directive
(Key Words) |
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FRCP Rule 83(a):
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Rules of District Courts; Judge’s Directive
(a) Local Rules (1) Each district court, with proper notice, can change the rules governing its practice. (2) New rule cannot cause a party to lose rights b/c not willing to comply with requirement. |
Rules of District Courts; Judge’s Directive:
(a) Local Rules. |
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FRCP Rule 83(b):
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Rules of District Courts; Judge’s Directive:
(b) Procedures when there is no controlling law: judge may regulate in any way consistent with Fed Law. Can’t sanction for noncompliance unless actual notice of the requirement is given. |
Rules of District Courts; Judge’s Directive:
(b) Procedures when there is no controlling law. |
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FRCP Rule 84:
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Forms
Forms contained in the Appendix of forms are sufficient examples of the rules contemplated. |
Forms
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Fla. RCP Rule 1.100:
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Pleadings and Motions
(a) Pleadings. There shall be a complaint or, when so designated by a statute or rule, a petition, and an answer to it; an answer 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 who was not an original party is summoned as a third-party defendant; and a third-party answer if a third-party complaint is served. If an answer or third-party answer contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance. No other pleadings shall be allowed. |
Pleadings and Motions
(a) Pleadings. |
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USC 1332(a)-(d):
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§1332- Diversity of Citizenship: this is interpreted to be more specific than Constitution Article III (complete diversity).
(A) DC original jurisdiction if controversy is < $75,000.01. (B)final judgment less than $75,000, court may impose costs on Π (C)Corporations Citizenship: is considered both (D) strategy and the flip side. |
§1332 - Diversity of Citizenship:
(Key Words) |
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USC 1332(a):
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§1332- Diversity of Citizenship: this is interpreted to be more specific than Constitution Article III (complete diversity rather than minimal diversity)- complete diversity does not come from the statute but is an interpretation of it.
(A) District courts have original jurisdiction if the matter in controversy is $75,000.01 or more and is between either: (1) Citizens of different states (2) Citizens of a state against citizens of a foreign state (3) Citizens of different states and in which foreign states or citizens or subjects thereof are additional parties (4) A foreign state as Π is suing a citizen of a state or different states. For purposes of this section an alien admitted to the US for permanent residence shall be deemed a citizen of the state of which the resident is domiciled. |
§1332 - Diversity of Citizenship:
(A) District courts have original jurisdiction if: |
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USC 1332(b):
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§1332- Diversity of Citizenship: this is interpreted to be more specific than Constitution Article III (complete diversity rather than minimal diversity)- complete diversity does not come from the statute but is an interpretation of it.
(B) If the final judgment turns out to be a lot less than $75,000, then the court may impose costs on Π (usually not attorney’s fees) |
§1332 - Diversity of Citizenship:
Final judgment < $75,000 court can... |
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USC 1332(c):
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§1332- Diversity of Citizenship: this is interpreted to be more specific than Constitution Article III (complete diversity rather than minimal diversity)- complete diversity does not come from the statute but is an interpretation of it.
(C) Corporations Citizenship: is considered both a. Corporation’s state of incorporation b. The corporations principal place of business There are exceptions for insurers - Legal representative of an estate or estate of a decedent – citizenship is citizen of same state as descendant - Legal representative of an infant or incompetent- citizenship same as infant or incompetent • “State” applies to Puerto Rico, The territories and DC |
§1332 - Diversity of Citizenship:
(C) Corporations Citizenship. |
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USC 1332(d):
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§1332- Diversity of Citizenship: this is interpreted to be more specific than Constitution Article III (complete diversity rather than minimal diversity)- complete diversity does not come from the statute but is an interpretation of it.
(D) strategy: if you are suing someone and you want it to remain in state court 1)sue in the state defendant lives 2) additionally sue someone in the state you file (e.g. when suing Merryl Lynch sue a branch manager of that state - the flip side: 1) it might be thrown out for frivolousness 2) if you are the ∆ and you don’t want to be sued in that state but another, you seek a declaratory judgment by filing in that state court to prevent removal from taking place. |
§1332- Diversity of Citizenship:
(D) strategy and the flip side. |
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USC §1331:
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§1331- Federal Questions
• All civil actions “arising under” the U.S. Constitution, U.S. Laws, or U.S. treaties have original federal jurisdiction. |
§1331- Federal Questions
• “arising under” |
