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187 Cards in this Set

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  • Back
Do federal courts need personal jurisdiction over Ds?
Yes.
How is it asserted?
Exactly the same analysis as in state court.
What does personal jurisdiction tell us?
In what states the litigation may be filed.
What else must you know?
Whether to got to state or federal court there.
What types of cases can federal courts entereain?
1) Diversity of citizenship (including alienage) 2) Federal Question
What are the requirements for diversity of citizenship cases?
1) Amount in controversy must EXCEED $75,000 AND 2) The action must be between citizens of different states OR b/t a citizen of a state and a citizen or subject of a foreign country ("alien"). *NOTE: Always discuss both requirements even if it's obvious that one is not met.
Who are the right kind of litigants for a diversity (or alienage) case?
It's a complete diversity rule, so there is no diversity of citizensihp jurisdiction if ANY P is a citizen of the same state as ANY D.
What is the rule for aliens admitted to the US for permanent residence?
Aliens admitted to the US for permanent residence are treated as citizens of the state in which they are domiciled.
Can a US citizen who lives abroad sue in a federal court under diversity jurisdiction?
No. Because the citizen would not be domiciled in any state of the US. To be a citizen of a state in the US, you have to be domiciled in that state.
How is domicile established?
1)Presence in the state at some point WITH 2) the intent (subjective) to make that state your permanent or fixed home *NOTE: Always discuss both requirements
What is considered in making the intent determination?
No single factor is determinatove - courts look to all relevant evidence of intent, e.g., instate tuition, voting.
How many states can a person be a citizen of?
A person has only one domicile at a time so humans can only be citizens of one state at a time.
What if there is diversity when the suit is filed, but then P moves to D's state?
This is OK because we test for diversity when the case is filed - at that moment is when we have to meet these rules.
How are US territories such as DC treated?
As states for these purposes (also Puerto Rico and Guam)
Is citizenship of a party when the claim arose relevant?
No, only when the action is filed.
How is a corporation's citizenship determined?
Don't talk about domicile for corporations. For corporations, citizenship equals: 1) All states where incorporated (usually there's only one) AND 2) The ONE state where the company has its principal place of business (PPB). *Corporations can be citizens of more than one state at a time (but only has one PPB)
How do you determine the PPB?
Sometimes they tell you, but if they don't, there are two tests that different courts use: 1)Headquarters (nerve center - where decisions are made); OR 2) Major production or service activity (muscle center) Generally, courts consider the nerve center as PPB unless ALL business activity is in one state.
How is citizenship determined for unincorporated associations (partnerships, labor unions, etc.)?
By the citizenship of ALL members. (For partnerships, that includes general and limited partners. Can result in association being citizen of all 50 states)
How is citizenship determined for decedents, minors, and incompetents?
Look to the citizenship of the person being represented.
How is the amount in controversy determined?
There must be a good faith allegation that the claim in the complaint alone EXCEEDS $75,000, exclusive of interests and costs. *Exactly $75,000 is not enough.
When is what the P claims not OK?
Whatever P claims in good faith is OK unless it is "clear to a legal certainty" that P cannot recover more than $75,000
What if P ultimately recovers less than $75,000?
Jurisdiction is still OK, but P may be liable for costs even though she won the case. (usually winner recovers costs from loser)
What is aggregation?
Where P must add two or more claims to meet the amount in controversy requirement.
When can you aggregate claims?
1) We aggregate claims if it's one P vs. one D. The claims don't have to be related at all. 2) Joint claims can also be aggregated, e.g., where P is suing joint tortfeasors.
What if there are two Ds', claims against each are less than $75,000, but together it's more?
Can't aggregate b/c here it's not one P vs. one D
What if P is suing for an injunction, rather than damages?
Figure out the value of the injunction. Usually, if EITHER of the following tests yields over $75,000, the amount requirement is deemed satisfied: 1) Majority view: Does the encroachment hurt P by more than $75,000? 2) Minority view: Would it cost D more than $75,000 to comply with the injunction?
What types of cases are excluded from diversity jurisdiction?
Even if requirements for diversity of citizenship jurisdiction are met, federal courts will NOT hear cases involving: 1)the issuance of a divorce; 2) alimony; 3) child custody decree; 4) probate of a decedent's estate. *Note: this is a narrow exception.
What is the rule with respect to collusion?
No subject matter jurisdiction when a party "has been improperly or collusively made or joined to invoke jurisdiction."
How will this usually come up?
An assignment to create diversity. No diversity of citizenship jurisdiction if P is a mere collection agent for the original interested party with no real interest in the case otherwise.
How do you establish federal question (FQ) jurisdiction?
Complaint must show a right or interest founded substantially on a federal law (e.g., federal constitution, legislation). Citizenship is irrelevant; no amount in controversy requirement. P is enforcing a federal right.
How do you know if there is FQ jurisdiction?
1) Some cases have exclusive federal jurisdiction (like patent infringement, some federal securities law cases); 2) Where there's no exclusive jurisdiction, follow well-pleaded complaint rule.
What is the well-pleaded complaint rule?
If the complaint were well-pleaded, just stating P's claim, without extraneous material, would it be federal? Ask, is P enforcing a federal right? If yes, it's a FQ case. If no, it's not a FQ case.
Once the CASE is in federal court based on FQ or diversity jurisdiction, what is the rule for additional claims asserted by P or another party?
For every single claim joined in federal court, we must have a basis of subject matter jurisdiction. Alwyas have to ask whether a claim is supported by diversity or FQ jurisdiciton. If so, claim can be heard in federal court. If not, apply supplemental jurisdiction analysis.
What is supplemental jurisdiction?
Allows federal court to entertain claims over which it would have no independent basis of subject matter jurisdiction (i.e., claims that aren't federal questions and where there's no diversity of citizenship jurisdiction)
What are the types of supplemental jurisdiction?
1) Pendent; 2) Ancillary
What is pendant jurisdiction?
Applies for claims joined by P in federal question case --does NOT apply in diversity cases.
What is required to have pendant jurisdiction?
The two claims (the original FQ and the additional claim) arise from a "common nucleus of operative fact"
What will meet this test?
The same transaction/occurrence (T/O) will definitely meet the test. But, the 2nd Circuit has articulated an even broader standard, saying that all you need is a loose factual connection.
If these requirements are satisfied, must the court hear the case?
Even if the requirements are satisfied, the court has DISCRETION not to hear the supplemental claim.
What if P's other claim that he's trying to get in under pendant jurisdiction is against a different D than the FQ claim D?
This is fine. It's the same analysis.
When does court have discreition NOT to hear the pendent claim?
1) If FQ is dismissed early in the proceedings (before trial, usually); or 2) If the state law claim is complex; or 3) If the state law issues would predominate.
What is ancillary jurisdiction?
Applies for claims joined by Anyone but the P in ANY kind of case (diversity or FQ).
What is the requirement for ancillary jurisdiction?
1) Claim arises from same transaction/occurrence as underlying case. (or loose factual connection) 2) Court has same DISCRETION as with pendent jurisdiction
What is removal?
Allows Ds (only) to have case filed in state court "removed" (transferred) to federal court embracing the state court in which originally filed.
What is the general test for removal?
Case is removable if case could have been filed in federal court, i.e., if there is subject matter jurisdiction.
What is the timing with respect to removal?
Must remove within 30 days of SERVICE (not filing) of the first removable pleading. Usually, that's at the outsel, with service of process.
What if one D wants to remove and another doesn't?
No removal. All Ds must agree.
What if P sues in state court against D1 for violation of federal right, and D2 for violating a state law right and there's no diversity. Can D1 remove?
Maybe. If there is a "separate and independent" federal question claim agaisnt one D, can remove the whole case, but court can remand state law issues.
What is the special removal rule for diversity cases?
No removal if any D is a citizen of the forum.
What additional timing rule applies?
No removal more than one year after the case was filed in state court.
What is the procedure for removal?
D files notice of removal in federal court, setting forth grounds of removal; signed under Rule 11; attach all documents served on D in state action; copy to all adverse parties. Then D files a copyp of the notice of removal in state court.
What if removal is improper?
P moves to remand to state court; must do so within 30 days if based on defect other than subject matter jurisdiction.
When must court remand?
Any time it finds there is no federal jurisdiction.
What is the rule with respect to filing of counterclaims by D and removal?
1) A D who files a permissive counterclaim in state court probably waives the right to remove; 2) A D who files a compulsory counterclaim in state court probably does not waive the right to remove.
What is the Erie Doctrine?
Concerns the choice of law b/t federal and state law - when does a federal court apply federal law and when does it apply state law?
When does Erie come up?
Generally only comes up in diversity of citizenship cases.
What is the black letter rule?
In diversity cases (or supplemental jurisdiction claims) federal court must apply state substantive law.
How can you tell what's substantive?
Some issues are easy - e.g., elements of claim or defense are substantive. If not that easy, approach to take depends on source of federal law. 1) First, ask is there some federal law (like a statute or FRCP or FRE on point that directly concflicts with state law? If so, apply the federal law, so long as it is valid. A FRCP is valid if it is "arguably procedural" 2) Second, if no federal law is on point, apply three phrases in analysis: 1) Outcome determinative; 2) Balance of interests; 3) Avoid forum shopping.
Why is a FRCP valid if it is arguably procedural?
B/c of the Supremecy Clause -if there is a federal directive on point, it wins if it is valid.
What is the "outcome determinative" analysis?
If applying or ignoring the state rule would affect the outcome of the case, it is probably substantive and that means you should probably apply the state law.
What is the balance of interests analysis?
Does either federal or state system have strong interest in having its rule applied? E.g., strong federal interest in having jury decide fact questions; contrary state law won't be followed unless very strong state interest.
What is the forum shopping analysis?
If the federal judge does not follow state law on this point, will it cause litigants to flock to federal court? If so, should probably apply state law. Don't want to give incentive to forum shop.
What are the cases as to which the law is well established?
These are substantive for Erie purposes: 1) Statutes of limitation; 2) Rules for tolling statutes of limitations; and 3) Choice of law rules.
In a diversity of citizenship case involving the NY tort reform law that provides a lower standard for ordering a new trial (if jury award of damages "deviates materially" from what would be reasonable compensation), what must the federal court do?
Apply the NY law as the standard for granting a new trial. It is substantive for Erie purposes, so you'd apply the "deviates materially" standard.
Which court addresses the motion for new trial (NY tort reform law says says appellate court does it; federal law says trial court does it)?
Here, federal court does not have to follow state law.
What is venue?
Just means "place." After deciding to sue in federal court ina particular state, say NY, next issue is where - in which federal district (ND, SD, ED, WD).
What is the difference b/t subject matter jurisdiction and venue?
Subject matter jurisdiction tells us we can go to federal court; venue tells us which federal courts.
What are the rules?
In any case (FQ or diversity), P may law venue in any district where EITHER of these two things is true: 1) All Ds reside or 2) A substantial part of the claim arose
What if no district anywhere in US meets either of these choices (only really where all Ds reside in different districts and claim arose overseas)?
Then: 1) In diversity of citizenship cases, any district where any D is subject to personal jurisdiction; 2) In federal question cases, any district where any D is found.
What is the special rule for where Ds reside in different districts of the same state?
If Ds reside in different districts of same statee, venue is proper in the district where any one of the Ds resides.
How do you determine residence?
1) For individuals, residence usually equals domicile. So, it is usually the same as an individual's citizenship for diversity of citizenship jurisdiction purposes; 2) A corporation "resides" in all districts where the corporation was subject to personal jurisdiction when the case commenced.
What is the rule for local actions?
Actions re: ownership, possession, or injury to land (including trespass) must be filed in the district where the land lies.
What are the rules of venue transfer?
From one district court to another, can only transfer to one where case could've been filed (one that is proper venue and where there is personal jurisdiction over the D, without waiver by D) 1) If venue in original forum is proper, may transfer to another federal district court; 2) If venue in original forum is improper, court may transfer in the interests of justice or dismiss.
What factors will the court consider in deciding whether to transfer to another federal district court when original venue was proper?
1) Convenience of parties; 2) Convenience of witnesses; 3) "Interests in justice."
What choice of law rules are applied by the court to which a case is transferred?
The court to which a case is transferred applie the choice of law rules of the original court, even if P initiated the transfer.
What is process?
1) Summons (formal court notice of a suit and time for response); and 2) A copy of the complaint
When must process be served?
Within 120 days of filing the complaint.
What if P doesn't serve w/in 120 days of filing the complaint?
Case will be dismisssed without prejudice, unless the P shows good cause for failing to serve D within 120 dayas, in which case the case will not be dismissed.
Who may serve process?
Any nonparty who is at least 18 years old.
What method of service of process can be used?
The federal district court may use any method of service permitted by: 1) the FRCP; or 2) the law of the state in which it sits; or 3) the law of the state in which service is effected.
What is personal service?
Papers are given to D personally.
Where can personal service be accomplished?
Anywhere in the forum state (and, in some cases, can be outside the forum state).
When is substituted service oK?
OK if: 1) It is D's usual abode AND 2) You serve someone of suitable age and discretion who resides there.
To who else can process be delivered?
To D's agent authorized to receive service.
What is waiver by mail?
Process is mailed to D by first class mail, postage prepaid.
Is this OK?
This is OK if D returns waiver from within 30 days.
What does D waive when she does this?
D waives serrvice but nothing else (e.g., personal jurisdiction).
What if D doesn't waive?
Then P must serve D either personally or by substituted service, and she will have to pay the cost of such service.
When is it OK to deliver process to D in another state?
OK ONLY if state law allows (for example, with a long-arm statute).
What are the exceptions to this rule?
Where these apply, you can serve out of state even without state law: 1) Bulge rule; and 2) Statutory interpleader
When can different Ps sue together?
When their claims: 1) arise from the same T/O; AND; 2) raise at least one common question.
When can P sue different co-Ds together?
When the claims against the two Ds: 1) Arise from the same T/O; AND 2) Will give rise to at least one common question.
What does it mean to have a necessary and indispensale D or P?
Soem absentees (persons not originally in the suit) must be joined b/c they have some relationship with the action).
Who's necessary?
1) Without absentee, cannot accord complete relief among those already joined (worried about multiple suits); 2) Absentee's interest will be harmed if he isn't joined (practical harm); or 3) Absentee claims an interest which subjects a party (usually D) to possibility of multiple obligations. If the absentee falls into any of these three categories, the court can order joinder.
Are joint tortfeasors necessary?
No. (even though they would seem to meet one of those tests)
When is joinder of a party not feasible?
Where there's no personal jurisdiction over him or his joinder destroys diversity of citizenship or he has a valid objection to venue.
What happens if a necessary party's joinder is not feasible?
In such a case, the court must either: 1) proceed with the case without joining the party; or 2) Dismiss the pending case. (If court does this, label party "indispensable")
How does the court decide whether to proceed or dismiss?
Balances these factors: 1) Is there an alternative forum available where everybody (including the absentee) can be joined (maybe state court)? 2) What is the real likelihood of harm to anybody if we proceed without absentee?; 3) Can the court do something to shape the order in the pending case to avoid such harm?
What is a counterclaim?
An offensive claim agaisnt an opposing party. E.g., a claim by the D agaisnt the P.
When is counterclaim filed?
With the responsivve pleading.
What types of counterclaims are there?
1) Compulsory and 2) Permissive
What are compulsory counterclaims?
Ones that arise from the same T/O as P's claim.
When must a compulsory counterclaim be filed?
With your answer in the pending case (unless it has already been asserted) or else it's waived. D cannot sue on the claim in a separate case.
What is a permissible counterclaim?
Does not arise from the same T/O as P's claim. Does not have to be asserted in the pending case. D may assert this in the pending case or in a separate case.
Where D files a motion to dismiss that is granted and never has to file an answer, can he later file a counterclaim that arose out of the same T/O as the first case?
Yes. B/c he never had to file an answer, so he didn't have to assert the compulsory counterclaim.
What should you always put in your answer regarding counterclaims and cross-claims?
"For every claim asserted in federal court, we must assess whether there is federal subject matter jurisdiction."
Can you use supplemental jurisdiction (ancillary) to get a counterclaim into federal court if diversity or FQ is not available?
Yes, for compulsory counterclaims.
Why?
B/c these meet the test for ancillary: 1) Anyone but P; 2) Loose factual connection.
Can ancillary jurisdiction allow a permissive counterclaim?
2d Circuiut has upheld ancillary over a permissive counterclaim.
What is a cross-claim?
This is an offensive claim against a co-party.
When may a cross-claim be filed?
If it arises from the same T/O as the underlying action. It is NOT compulsory.
Is there supplemental jurisdiction (ancillary) over cross-claims/
Yes, over cross-claims by Ds b/c it meets the test for ancillary. A cross-claim by definition always arises from the same T/O.
What is impleader?
Claims involving a TPD brought in (usually by the D) in a vicarious liability situation.
What are the requirements for an impleader claim?
The claim against this TPD MUST be for indemnity or contribution.
When can D implead?
D has a right to implead within 10 days after serving her answer; after that, she needs court permission.
What are the steps for joining the TPD?
1) File third-party complaint naming TPD; and 2) Serve process on the TPD (so court needs personal jurisdiction)
After TPD is joined, can TPD assert a claim against the P?
Yes, if it arises from the same T/O as the underlying case.
After TPD is joined, can the P assert a claim against TPD?
Yes, if it arises from the same T/O as the underlying case.
So, for each type of claim, can you get supplemental jurisdiction?
1) D v. TPD - Yes, it meets the test for ancillary; 2) TPD v. P - Yes, it meets the test for ancillary; 3) P v. TPD - No. It does NOT meet the test for ancillary b/c this is a claim by the P. BUT, could be "pendent" if the original claim (P v. D) was a federal question. Then it would meet the test for pendent form.
CWhat is the bulge rule?
Absentees who are joined as necessary parties or under impleader may be served with process out of state, regardless of state law, within 100 miles of the courthouse in which the case is pending. Not available for serving process on original Ds.
What is intervention?
Absentee wants to join a pending suit. She chooses whether to intervene as P or as D. Court can realign her if she came in on the "wrong" side. Application to intervene must be timely.
When is there intervention of right?
Absentees interest may be harmed if she is not joined and her interest is not adequately represented now.
What is permissive intervention?
A's claim or defense and the pending case have at least one common question. Allowing intervention here is discretionary with the court.
What if there's a diversity case and intervention will mess up diversity. Is supplemental (ancillary) jurisdiction available?
Generally, not for permissive intervention.
What about intervention of right?
No.
What is interpleader?
Where one holding money or property wants to force all potential claimants into a single lawsuit to avoid multiple litigation and the threat of inconsistent results.
Who is the person holding the property?
The stakeholder.
Who are the people who want the property?
The claimants.
What are the two types of iterpleader?
Rule and statutory.
What common features do they share?
In each: 1) Stakeholder is not sure who owns the property and wants to avoid being sued several different times about it. 2) Court may issue injunction stopping partie sfrom litigating the ownership question in another court
What is different b/t the two?
Different standards for jurisdiction, venue, and service of process.
How do you determine diversity of citizenship?
1) Under the rule, the stakeholder must be diverse from every claimant; 2) Under the statute, one claimant must be diverse from one other claimant. Don't even look at the stakeholder's citizenship.
What is the amount in controversy requirement?
1) Under the Rule, must exceed $75,000; 2) Under the statute, all you need is $500 or more.
What is the rule for service of process?
1) Under the Rule, regular service of process rules, like any case; 2) Under the statute, nationwide service of process.
What is the rule for venue?
1) Under teh Rule, regular venue rules, like any case; 2) Under the statute, lay venue in a district where any claimant resides
What is a class action?
Where representative sues on behalf of a group.
What are the initial requirements?
Must demonstrate: Nobody Can Tell Rich Anything: 1) N - Numerosity (too numerous for practicable joinder); 2) C - Commonality (some questions of law or fact in common to the class); 3) T - Typicality (Representative's claims/defenses are typical of those of the class); 4) RA - Represent Adequately and fairly (representative will fairly and adequately represent the class).
If the initial requirements are met, what else is required?
Must fit the case into one of three types of class actions: 1) "Prejudice" 2) Injunction or declaratory judgment (not damages) sought b/c the class members were treated alike by the other party; 3) "Damages"
What is the prejudice type of class action?
Class treatment is necessary to avoid harm either to the class members or to the party opposing the class.
What is an example of the first type of class action?
Numerous claimants to a fund; individual suits would deplete the fund, leaving some without a remedy.
What is an example of the second type of class action?
Employment discrimination.
What is required for the third type of class action?
1) Common questions predominate; 2) Class action is the superior method for resolving the dispute.
What is an example of the third type of class action?
Mass tort.
What does the court have to do?
1) Determine "at an early practicable time" whether to certify the case to proceed as a class action; 2) If court certifies the class, it must "define the class and the class claims, issues, or defenses," and appoint a class counsel.
What must class counsel do?
Fairly and adequately represent the interests of the class.
Does the court notify the class of pendency of the class action?
In the type 3 class, the court must notify (often by mail)all reasonably identifiable members, telling them various things.
What types of things does court have to tell the members in that case?
Includes: 1) They can opt out; 2) The binding effect of a class judgment on class members; and 3) They can enter a separate appearnace through counsel.
Is notice required in Type 1 or Type 2 classes?
No.
Who pays for notice in Type 3 case/
Probably representative.
Who's bound by the judgment?
All class members except those who opt out of a Type 3.
Can there be settlement or dismissal of class claims in a certified class?
Not without court approval.
What does court do?
Gives notice to class members to get theri feedback on whether the case should be settled or dismissed. If its' a Type 3 class, must give members a second chance to opt out.
If teh class seeks to invoke diversity of citizenship jurisdiction, whose citizenship is relevant on the class side?
It is the representative only. We don't care about all the class members.
How do we determine amount in controversy in a diversity class action?
Two positions: 1) Each member must claim more than $75,000 (not just the representative). 2) OK if representative's claim exceeds $75,000, regardless of class members' claims. *2nd Cir hasn't taken position on split, but SC recently said it's the latter view is correct - OK if representative's claim exceeds $75,000 regardless of class members' claims.
What do juries do?
Determine facts. Courts instruct on law.
What is the requirement for demanding jury trial?
Must demand jury trial in writing no later than 10 days after service ofo the last pleading raising a jury-triable issue. May demand in a pleading or separate document.
What is the right to a jury trial in federal court?
7th A preserves it in actions at law, but not in suits at equity.
What if a case involves both law and equity?
We get a jury to determine factual issues underlying the law claims, but not the equity claims.
Generally, which issues are tried first in that case?
Jury issues.
Does the Seventh A apply in state courts?
No. This is part of the bill of rights that has not been incorporated to the states.
What limits exist on the use of peremptory strikes?
They must be used in a race and gender neutral way.
What is a directed verdict called and what is it?
Motion for judgment as a matter of law (JMOL). The effect is to take the case away from the jury.
When is a JMOL brought?
When the other side has been heard. 1) D can move twice - at the close of the P's evidence and again at the close of all evidence. 2) P can move only at the close of all evidence.
What is the standard for granting the motion?
Reasoanble people could not disagree on teh result.
What other sentence should you always throw in?
"In ruling on the motion, the court generally will view the evidence in the light must favorable to the nonmoving party."
What is a JNOV referred to as?
Renewed Motion for Judgment as a Matter of Law (RJMOL)
When is a motion for RJMOL brought?
Jury returns verdict for one party and the court enters judgment on the basis of that verdict. Now, losing party files RJMOL; if granted, results in entry of judgment for him.
When must losing party move for RJMOL?
Not later than 10 days after entry of the judgment.
What is the standard?
Same as the JMOL - reasonable people could not disagree on the result. And, generally, the court will view the evidence in the light most favorable to the nonmoving party.
What is a prerequisite for being granted RJMOL?
Must have made a motion for judgment as a matter of law AT THE CLOSE OF ALL EVIDENCE. If you didn't, you CANNOT make the renewed motion, even if you moved for it at the end of the P's evidence - has to be at the close of ALL evidence.
What is the situation involved in motion for new trial?
Judgment entered, but judge concludes that errors at trial require a new trial.
When can you move for new trial?
Must move not later than 10 days after entry of judgment.
What are examples of the grounds for a motion for a new trial?
1)Prejudicial (not harmless) error at trial makes judgment unfair (e.g., wrong jury instruction, erroneous evidentiary ruling); 2) New evidence that could not have been discovered in time for trial; 3) Prejudicial misconduct of party or juror (e.g., juror made independent investigation of the accident scene); 4) Judgment is agaisnt the weight of the evidence, showing serious error of judgment by the jury.
How can a D respond to a complaint?
Under FRCP 12, D may resond in one of two ways (by motion or by answer).
When must D respond?
No later than 20 days after service of process on her.
What is an answer?
Answer is a pleading. In it, D does two things: 1) respondes to the allegations of the comoplaint (admitting, denying, or, when appropriate, saying that D lacks sufficient information to admit or deny); and 2) raises affirmative defenses.
What are motions?
Technically, they are not pleadings. They ask the court to order something, such as to require the P to make a more definite statement (Rule 129e)) or ordering that a pleading or a portion thereof be stricken (Rule 12(f)), or that the case be dismissed for any of a variety of reasons.
What are the defenses that can be raised either in the answer or by motion?
1) Lack of subject matter jurisdiction; 2) Lack of personal jurisdiction; 3) Improper venu; 4) Insufficient process (rare); 5) Insufficient service of process (common); 6) Failure to state a claim on which relief can be granted; 7) Failure to join an indispensable party.
What defenses MUST be included in the first Rule 12 response or else they will be waived?
1) Lack of personal jurisdiction; 2) Improper venue; 3) Insufficient process; 4) Insufficient service of process
What defesnses can be raised at any time THROUGH TRIAL?
1) Failure to state a claim on which relief can be granted; 2) Failure to join an indispensable party.
What defense can be raised at ANY time in te case (even on appeal)?
Lack of subject matter jurisdiction - this one is nonwaivable.
What must a complaint contain?
1) Statement of subject matter jurisdiction; 2) Short and plain statement of the claim, showing entitled to relief; and 3) Demand for judgment.
Does the demand for judgment limit what can be recovered?
No, except in default cases.
What must be noted about pro se litigants?
With a pro se litigant the court is usually more lenient, but these requirements still must be met.
How specific must the statement of claim be?
Need not be stated with great specificity or particualrity. Federal Rules use what is called "notice pleading," under which the pleading is sufficient if it puts the other side on notice.
What are the three exceptions to notice pleading (where must plead facts with specificity or particularity)?
1) Circumstances establishing fraud; 2) Mistake; 3) Special damages.
What are special damages?
Those that do not noramlly flow from an event.