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24 Cards in this Set
- Front
- Back
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Service |
- Proper Service is required for the Ct to have jdx |
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Two Part Test |
a. Statutory Rule Requirements b. Due Process Requirements Notice must be reasonably calculated, under all circumstances to apprize interested parties of the pendency of the action. |
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Service of Summons & Complaint |
In Federal Ct: - Personal delivery: 1) usual residence 2) with suitable person 3) person must resides there - Pursuant to State law where district is located - pursuant to State law where service takes place OR if a Corp = service on registered agent |
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Process Server Requirements |
Must be over 18 |
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State Summons - must include |
Title court case classifications associated code number names & addresses of all parties - Direction to D to serve answer or demand for complaint - State the time within which response is required - & give NOTICE to D that Judgment will be entered if no response AND must include a HANDWRITTEN signature by P's attorney |
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Service on Types of Individuals/Entities |
Individual: if neither incompetent or under 14
Minors under 14 or incompetent: serve the minor / incompetent & legal guardian
Minor 14-18 living w/ parent = both
Corp = officer, managing or general agent or pty authorized to receive service
If Suing State = attorney general or officer based on statute & attorney general by Certified mail
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Manner of Service |
- Personal Service by delivering to 1) usual residence to a 2) suitable person that 3) resides there - Service by Certified Mail or Commercial Delivery if: Competent & over 14, Businesses - Long Arm: 1) Personal Delivery 2) Certified Mail or 3) complying w/ law of state in which serving - Non-resident motorist - Director of the Dept of Public Safety - on Insurance CO. - 2 copies to Director of Ins.
NO SERVICE to or from church SERVICE
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EFFECT OF Certified Mail |
*SERVICE BY CERTIFIED MAIL IS EFFECTIVE ON THE DATE OF DELIVERY, BOP ON D TO PROVE PTY THAT SIGNED WAS NOT AUTHORIZED* |
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Service by Publication |
Rarely allowed. If P can demonstrate by affidavit that after due dilligence D cannot be found within the state, the judge may order service by publication fi 1) concealing himself or left state to avoid 2) resident but can't be found 3) not a resident but has property here 4) a non-resident in a termination of parental rights or adoption proceeding 5) annulment or custody |
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SOL & Time Limits on Serving Summons & Complaint |
A civil action is commenced when Summons & Complaint are filed if - served within SOL OR
Afterwards may serve the attorney only |
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Time to Serve: D's Answer is Due |
STATE: - 30 days after Service OR - if responded w/ pre-answer motion: 15 days after denial of motion
FEDERAL: - 21 days, unless waives service then 60 days - if responded w/ pre-answer motion: 14 days after denial of motion |
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Pleading Requirements
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Complaint Requirements 1) Stmt of SMJ (federal especially) 2) Allegations of Claim a) Fed = Notice Pleading = short & plain stmt of CLAIM showing pleader is entitled to relief b) S.C. = FACT Pleading = short & plain stmt of Facts 3) Demand for Relief 4) S.C. CANNOT PUT A SUM ON PUNITIVE DAMAGES |
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Federal Pleading |
Enough info to allow opponent to formulate a meaningful claim.
- Allegations of fact, that render the asserted claim plausible on it's face |
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State Pleading Allegations |
Require Ultimate Facts - Facts that establish each element of the claim - Not a great deal of detail but SOME facts underlying the critical elements
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Heightened Pleading Requirements |
Fraud: All DETAILS making up elements of fraud who what where and specific damages |
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Waivable Defenses
P V P SA |
Allowed ONLY 1 Pre-Answer Mtn w/ 12(b) defenses & waived if not sent in first response: 1) Pjdx 2) Venue 3)Insufficiency of Process (flaw in doc in summons) 4) Insufficiency of Service (flaw in delivery) 5) Dismiss as same action pending(State Ct) |
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Pre Answer Motions |
DEFENSES SMJ *anytime* PJdx Venue Insufficiency of Process (flaw in doc in summons) Insufficiency of Service (flaw in delivery) Failure to join indispensible party*Non-waivable* Dismiss as same action pending(State Ct) FAILURE TO STATE CLAIM (12b6) JUDGMENT ON PLEADINGS (merits) SUMMARY JGMT (merits)
Matters of Form 1) Mtn: more definite stmt (vague) 2) Mtn: Strike (immaterial allegation/cheap shots) |
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P: Amend Complaint |
STATE: - 30 days after Served w/ answer OR 30 days after Service of response - ask court and usually freely allowed unless amendment will prejudice other party
Federal: - 21 days after Served w/ Answer OR 21 days after service of response - OR ask court and usually freely allowed unless amendment will prejudice other party
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D: Amend Answer |
Since answer does not require a response:
STATE 1) 30 days 2) Ask court and usually freely allowed unless amendment will prejudice other party in terms of discovery
FEDERAL 1) 21 days 2) ask court and usually freely allowed unless amendment will prejudice other party |
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Amendment to Complaint - Must be filed w/in SOL or - Relate Back |
- Filed w/in SOL or - Relates back if the amendment arises from the Same transaction or occurence
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Amendment to Add Defendant - Must be filed w/in SOL or - Relate Back |
- Relates back if the amendment arises from the Same transaction or occurence - New D had to learn about the action within the 120 days allowed for service |
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Summary Judgment |
Whether there is a genuine issue of Material fact, such that the moving party is entitled to judgment as a matter of law. In ruling, the court will consider: 1) pleadings on file 2) admissions on file 3) discovery 4) affidavits A party MAY NOT rest on pleadings to survive summary judgment. He must submit submit an affidavit or point to competenet evidence that would indicate a material fact is at issue. |
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Motion for Directed Verdict |
A D may make a mtn for directed verdict at the close of P's evidence. Either party make a motion at the close of all evidence.
The Ct must find a reasonable jury would not have a legally sufficient basis to find for the non-moving party on the issue. The court must view the evidence in the light most favorable to the nonmoving pty and draw all inferences in that party's favor. |
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Directed Verdict THEN JNOV Mtn for Judgment not withstanding the Verdict |
In S.C., a pty is required to move for a directed verdict at the close of the case to preserve a later motion for judgment notwithstanding the verdict. THUS if no mtn for directed verdict was made BEFORE if was submitted to the jury, the motion for judgment notwithstanding the verdict is improper. If Mtn for directed verdict, then JNOV at 1) Discharge of Jury or 2) within 10 days Should be granted only if all the evidence when viewed in light most favorable to the nonmoving party, so overwhelming favors the moving party, no reasonable jury could have reached the challenged verdict. |
