Case

Question 1

Service of process

Answer 1

How to be served?
Personal service, Substituted Service: process is left with D’s butler at D’s home is ok if:

1. it is D’s usual abode; &
2. serve someone who is suitable age and discretion & who reside there (no babysitter)

The issue is service by e-mail. Although service of process by e-mail is not specifically an authorized method of service, Rule 4 permits the court to authorize alternative methods of service in appropriate cases.

Under Rule 4, service on a foreign corporation may be made (i) in accordance within international treaty; if there is no treaty, service on a corporation may be made: (ii) in accordance with the foreign country’s law, (iii) as the foreign authority directs in response to a letter request for guidance, (iv) by having the clerk mail process to the defendant, with a signed receipt requested; or more importantly, (v) by any other means not prohibited by international agreement as the country may order. (>> therefore, under (v) if the court orders so, service by e-mail is proper, and it seems only feasible method.)

*

Question 2

Abstention

Answer 2

Generally, a federal court can retain jurisdiction over a case, but should abstain from ruling on the question, when a challenge to the constitutionality of a state statute is at issue, until a decision has been made by the state courts on the meaning of the state law in which any defendant may be found.

Question 3

Pleading

Answer 3

Amending Pleadings: Within 21 days after service if no response
Generally, a pleading may be amended once before a responsive pleading served, or within 21 days after service of the pleading if no responsive pleading is required (i.e., when amend answer). Thereafter, a pleading may be amended only by the written consent of the adverse party or by leave of the court upon motion. Leave of the court is “freely given when justice so requires.”

Question 4

Complaint

Answer 4

Filing commences an action.

1. Requirements:
   
   1. statement of grounds of SMJ
   2. short and plain statemnt of the claim, showing entitled to relief
   3. Demand for relief sought

• In stating a claim, must plead facts supporting a “plausible claim”.
• Particularity and specificity required for Fraud, Mistake, and Special damages

Question 5

Counterclaim

Answer 5

This is a claim against an opposing party, e.g., D v. P. It is part of D’s answer. 2 types of counterclaim:

1. Compulsory: arises from the same T/O as P’s claim. MUST BE FILED IN THE PENDING CASE, OR IT’S WAIVED. Cannot be asserted in another action. (don’t use it now, will lose it). if a counterclaim is procedurally OK, then assess whether it invokes diversity or FQ jurisdiction. If so, it is OK in fed. court. If not, try supplemental jurisdiction.
2. Permissive:

Question 6

Defendent’s response

Answer 6

Rule 12 requires D to respond by: (1) motion or (2) by answer. D must file wi 21 days after service of process to avoid default.

Motions (Rule12) - motions are not pleading; they are requests for ct order.

1. issues of form: (1) motion for more definite statement, (2) motion to strike
2. Rule 12(b) defenses:
   
   1. lack of SMJ
   2. lack of PJ
   3. improper venue
   4. insufficiency of process
   5. failure to state a claim
   6. failure to join indispensibleparty
   • 2,3,4,5 are “waivable defenses.” must be put in the first Rule 12 response or else waived
   • SMJ is never waived

Question 7

Answer

Answer 7

It is a pleading. Serve it wi 21 days after service of process.

1. Respond to allegations of complaint:
   
   1. admit
   2. deny - failure to deny can by an admission on any matter except damages
   3. state that you lack sufficient information to admit or deny - acts as denial, but can’t be used if the info = public knowledge or is in D’s control.

Question 8

Counterclaim

Answer 8

Claim against an opposing party. Two types:

1. Compulsory: arises form the same T/O as P’s claim. Unless already filed for claim in another case, you must file this in the pending case, or claim is waived.
2. Permissive: does not arise from same T/O as P’s claim. You may file it in your answer in this case or can assert it in a separate case.

Question 9

Crossclaim

Answer 9

Claim against co-party. it must arise from the same T/O as the underlying action. Crossclaim is permissive; you don’t have to file it in this case.

e.g.: P(CA) vs. D1(NY) & D2 (NY) for personal injures of $500K arising from a car collision (D1 drove D2’s car). D2 not know whose fault btwn D1 and P, but know damage ($200K). D2 want to recover $200K for the property damage. No FQ.

1. D2 should file a compulsory counterclaim against P. it is against an opposing party and arises from same T/O as P’s claim, so it’s a compulsory counterclaim. Is there SMJ over compulsory counterclaim? Y. it invokes diversity b/t D2 and P and amount more then 75K.
2. D2 may file a cross-claim against D1. It is against co-party and arises from the same T/O as the underlying case, so it is a cross-claim. What about subject matter jurisdiction? Here, no diversity (NY v. NY) So, is there supplemental jurisdiction over the cross-claim? Y Cuz it (1) it arises from the same T/O as the underlying case, and (2) this is not a claim by a P, so the limitation on claims by P in diversity cases does not apply. Here claim by D!!!

Question 10

Discovery

Answer 10

Required disclosure: (1) initial disclosures, (2) experts, (3) pretrial.

Discovery tools: may not be used until after Rule 26(f) conference unless ct order or stipulation allows. KEY ISSUE: what can be used to get info from non-party?

1. Depositions: can depose nonparties or parties. Nonparty should be subpoenaed, or he is not compelled to attend.
   
   1. cannot take more than 10 depos or depose same person twice wo ct approval or stipulation. cannot exceed 7 hrs/day
   2. use at trial: impeach deponent, any purpose if deponent is adverse party, any purpose if deponent unavailable at trial
   3. nonparty cannot be required to travel more that 100 miles from reisdence of place of business
2. Interrogatories: Qs in writing to another party, to be answered in writing under oath.
   
   1. must respond wi 30 days.
   2. cannot serve more than 25
3. Requests to produce: requests to another party requesting to make available for review and copying various documents or things, including ESI, or permit entry upon designated property for inspection, measuring, etc.
   
   1. Specify form in which ESI is to be produced (hard copy or electronic).
   2. Must respond wi 30 days of service, stating that the material will be produced or stating objection.
4. Physical or mental examination:_ _Only available through court order on showing
   that party’s health is in actual controversy and “good cause” (i.e., you need it and can’t get it elsewhere).
5. Requests for admission: A request by one party to another party to admit the truth of any discoverable matters. Often used to authenticate documents.
   
   1. must respond wi 30 days of service
   2. response is to admit or deny; can indicate lack of info only if made reasonable inquiry. failure to deny = admission; amend if failure not in bad faith.

Question 11

Scope of discovery

Answer 11

1. Standard: anything relevant to a claim/defense - relevant here is broader than at trial >> “reasonably calculated to lead to the discover of admissible E”
2. Attorney-Client privilege: communications are not discoverable
3. Work product: generally protected from discovery. Discoverable if (1) substantial need, (2) otherwise not available. Absolute privilege for:
   
   1. mental impressions
   2. opinions
   3. conclusions
   4. legal theories

Question 12

Enforcement of discovery rules

Answer 12

1. protective order, partial violation, total violation
2. Sanctions: party seeking sanctions must certify to ct that she tried in good faith to get info wo ct involvement
   
   1. partial violation: (1) move for order compelling the party to answer, plus costs, (2) If party violates, RAMBO sanctions
   2. total violation: RAMBO sanctions:
   • Establishment order
   • Strike pleadings of disobedient party
   • Disallow E
   • Dismiss P’s case
   • Enter default judgment