Civ Pro Flashcards
Do fed courts have concurrent or exclusive jx wrt fed question jx?
State courts and federal courts have concurrent JX of FQ claims, except when Congress expressly provides that JX of the federal courts is exclusive.
When does fed question jx exist?
- Does fed law create the CoA?
- Does fed law create a right and CoA implied? Or
- Does right to relief under state law require resolution of a substantial question of fed law? Must be a serious and important issue actually disputed. And only if fed court not overwhelmed and won’t disrupt fed-state balance approved by Congress.
Well-pleaded complaint rule.
No amount-in-controversy or diversity requirement.
What is the well-pleaded complaint rule?
FQ exists only when federal issue is presented on the face of the complaint (P’s c/a; not defenses, answers or counterclaims).
What is diversity jx?
Federal courts have JX when parties are citizens of different states or citizens of a state and citizens of a foreign state, and amount in controversy exceeds $75,000.
What kind of diversity is needed for diversity jx?
Complete diversity: no diversity if any P is a citizen of the same state or citizen of the same foreign country as any D in the case.
How is citizenship of individuals determined (for diversity jx purposes)?
Domicile: State in which an individual is present and intends to reside for an indefinite period.
An individual can only have one domicile at a time. Domicile determined when action is commenced.
How is citizenship of corporations determined (for diversity jx purposes)?
State of incorporation and state where it has its principal place of business (“nerve center” from which the high-level officers direct, control, and coordinate the activities of the corporation).
What is the standard of proof for the amount in controversy?
P’s good-faith assertion in complaint is sufficient, unless there is legal certainty that P cannot recover alleged amount.
Rules around aggregation of claims:
- Single P against single D: Total value of P’s claims combined to determine amount in controversy.
- Multiple Ps with common/undivided interest: Total value of Ps’ claims combined to determine amount in controversy.
- Multiple Ps, each having separate and distinct claims: Each P’s aggregate claims are judged separately in determining whether the amount-in-controversy requirement has been met. If the aggregate claims of at least one P separately meet the amount-in-controversy req, then the court may also have SJ over the claims of any other P, even though that P’s claims do not meet the amount-in-controversy requirement.
- Single P against multiple D’s: Claims against multiple Ds may not be aggregated if the claims are separate and distinct. But if Ds are jointly liable to the plaintiff, then aggregation to meet the amount-in-controversy requirement is permissible.
- Class actions: In general, if any member of a putative class does not have a claim that meets the statutory jurisdictional amount, then the amount-in-controversy requirement is not met. If, however, at least one representative plaintiff in a putative class action has a claim that meets the statutory jurisdictional amount, other persons with claims that do not meet the jurisdictional amount can be made part of the class under the doctrine of supplemental jurisdiction. CAFA:
- Counterclaims: A counterclaim by a D against a P is not counted for the purposes of determining whether P has met the statutory jurisdictional amount.
What is SJ?
A district court with jurisdiction over a claim may exercise “supplemental jurisdiction” over additional claims over which the court would not independently have subject matter jurisdiction (usually state law claims against a nondiverse defendant) but that are so related to the original claim that the additional claims form part of the same case or controversy under Article III of the U.S. Constitution. § 1367(a).
So when a federal court has jurisdiction over a claim arising under federal law, the court may exercise SJ over an additional state law claim that arises out of a “common nucleus of operative fact.”
Pendant-party jx: District court may have SJ over claims that involve the joinder or intervention of additional parties over which the court would not otherwise have jurisdiction if the claims involving the additional parties satisfy the common-nucleus-of-operative-fact test.
When can additional claims against the same party be heard through SJ?
In judging whether the claims are related, the test is whether they arise out of a “common nucleus of operative fact” such that all claims should be tried together in a single judicial proceeding.
Pendant-party jx: District court may have SJ over claims that involve the joinder or intervention of additional parties over which the court would not otherwise have jurisdiction if the claims involving the additional parties satisfy the common-nucleus-of-operative-fact test.
How does rule 20 (permissive joinder of parties) affect SJ?
Additional Ps don’t need to satisfy amount-in-controversy but cannot destroy complete diversity if it’s a diversity case.
But Ds joined under permissive joinder must satisfy both?
What is the rule surrounding SJ and counterclaims?
Compulsory counterclaims: Always have SJ by their very nature. Don’t need to meet jurisdictional minimum if based on diversity.
Permissive counterclaims: Must satisfy SMJ on their own.
What is the rule surrounding SJ and cross-claims?
There’s always SJ for a cross-claim bc by definition they need to relate to same matter. No separate amount in controversy or diversity of citizenship requirement.
When can D remove case from state court to fed court?
If fed court has SMJ.
To which district court must removal be, and what is the consequence for removing to wrong district court?
Removal must be to the district court for the district and division in which the state court action is pending.
Removal to the wrong district court is subject to a motion to remand or transfer to the proper federal court.
At what point in the litigation must diversity exist for a D to be able to remove to fed court?
Diversity must exist at time of filing of original action as well as at time notice of removal is filed, unless:
(i) party preventing diversity is dismissed, or
(ii) non-diverse party against whom P has no colorable claim was fraudulently joined to defeat diversity
The subsequent substitution of a party due to death is not considered for purposes of diversity jurisdiction.
What limitation is there on removal if it’s based solely on DJ?
If removal based solely on DJ, claim may be removed only if no D is a citizen of the state in which the action was filed.
if FQ claims are joined with claims that aren’t independently removable, is entire case removable or only part?
Entire case may be removed.
What is the timeline for removal?
D must file notice within 30 days after receipt by or service on the D of the initial pleading.
Removal based on DJ: Cannot occur more than one year after action is commenced (unless P acted in bad faith).
Which Ds must consent to/join in removal?
In general, all Ds who have been properly joined and served are required to join in or consent to the removal.
If Ds are served at different times and a later-served D files a notice of removal, then any earlier-served D may join in the removal even though that D did not previously initiate or consent to removal.
In cases of removal based on FQ jx, only Ds against whom the federal claim is asserted must join in or consent to the removal.
A class action based on CAFA may be removed by any D without the consent of all Ds.
What is the timeline for remand (after removal)?
For lack of SMJ: Any time before final judgment is rendered.
Motion to remand for any defect other than SMJ must be made within 30 days after filing of notice of removal.
What are the three types of personal jx?
In personam: The power that a court has over an individual party. It is required whenever a judgment is sought that would impose an obligation on a defendant personally.
In rem: The authority of a court to determine issues concerning rights in property, either real or personal. The court generally determines title to the property, and such determination is conclusive as against all potential claimants.
Quasi-in-rem JX: Determines only the interests of the parties to the action regarding property located in the forum state. Traditionally, the judgment was not personally binding on D, could not be sued upon in any other court, and could not be enforced by seizing any of D’s property other than the property at issue in the quasi-in-rem action. Under “attachment jurisdiction,” which was historically a type of quasi-in-rem jurisdiction, a plaintiff could use attachment of property in the forum state to obtain jurisdiction. Under current precedent, however, there must be minimum contacts between the defendant and forum state to establish jurisdiction.
How does fed court decide if it has PJ over party?
A federal court will look to state long-arm statutes to determine if it has PJ over the parties.
Long-arm statutes: A state statute extending jurisdiction over nonresidents who have had contacts with such state.
Rule for fed court PJ over a nonresident D:
Minimum contacts test: Nonresident D must have certain minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.
Minimum contacts = D’s contacts with forum state must be purposeful and substantial, such that D should reasonably foresee being taken to court there.
Fair play and substantial justice factors:
- Interest of forum state in adjudicating matter
- Burden on D of appearing in case
- Interest of judicial system in efficient resolution of controversies, and
- Shared interests of the states in promoting common social policies
Can PJ be consented to?
Yes–expressly, impliedly, or voluntarily.
What are defenses to PJ?
Lack of jx, insufficiency of service of process
Must be asserted in responsive pleading (or motion before it is submitted). Failure to object waives the
objection.
Bases for in personam jx:
- Voluntary: As in appearing in court. But appearance alone does not waive right to object to PJ (if there to object to jx).
- Consent: D can expressly consent to jx by K, or once an action is brought, impliedly through conduct.
- Domicile: If authorized by statute, a state has jx over persons domiciled in state.
- Long-arm statute: Authorizes PJ over nonresidents who engage in some activity in state or cause some action to occur within state to extent permissible under DPC.
- Attachment of property: Under “attachment jurisdiction,” which was historically a type of quasi-in-rem jurisdiction, a plaintiff could use attachment of property in the forum state to obtain jurisdiction. Under current precedent, however, there must be minimum contacts between the defendant and forum state to establish jurisdiction.
When is there specific PJ?
When CoA arises out of or closely relates to a D’s contact with forum state.
When is there general PJ?
Requires that D be domiciled in or have continuous and systematic contacts with the forum state. Confers PJ even when CoA has no relationship with D’s contacts with the state.
When can contacts be imputed within orgs (for purpose of minimum contacts test)?
Partnerships: Each partner is generally an agent of partnership.
Corporations: Out-of-state corporation’s contacts with forum state doesn’t automatically establish jx over wholly-owned subsidiary unless it is parent’s alter ego or acting as agent.
Employees/agents: Contacts by nonresident employer’s agents/employees imputed to employer if acting within the scope of agency/employment. Not usually applicable to independent contractors.
What type of action can be brought against a resident corporation?
Any action
When is a corporation “at home” (such that they are subject to general PJ)?
- If incorporated there (resident corporation)
- If principle place of business there
- If contacts with forum states so continuous and systematic as to basically render them at home there (exceptional cases)
What is a resident corporation?
Incorporated in the forum state
Does having a website that is accessible in a forum state give them jx?
It is generally accepted that merely having a website does not subject a defendant to process everywhere that the site can be viewed. Most jx base jx over a nonresident’s website on the degree of interactivity between the website and the forum. When a website’s purpose is to assist in conducting direct business transactions, courts are more likely to find minimum contacts with a state and assert personal jurisdiction.
What are the DP requirements for in rem PJ?
Must still satisfy DP requirements for PJ because they affect the rights of individuals in the property. In general, for in rem jx to exist, the property at issue must be present within the forum state. In rem jx can be challenged if property is fraudulently brought into state.
DP is met if the notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” It is not sufficient to simply post the notice on the property or publish the notice in a newspaper as to persons who are known to have an interest in the property and whose whereabouts are reasonably ascertainable. In addition, any absent D who does not personally receive notice may set aside the judgment at any time within one year of the final judgment.
What are the DP requirements for quasi in rem PJ?
D whose property is subject to the judgment generally must have sufficient minimum contacts with the forum state to justify the exercise of PJ over the matter. So must satisfy minimum contacts test. When the action directly relates to property rights, such as the foreclosure of a mortgage or other lien, the minimum contacts requirement is satisfied because of the relationship between the claim and the property. Provided the owner of the property is given proper notice and an opportunity to be heard, the judgment is personally binding on D. If D chooses not to appear, the judgment of a federal district court is confined to the property that is the subject of the action.
When the underlying action does not relate to property rights, but the property instead serves only as the relief sought, such as in a breach of contract action in which the contract does not involve the in-state property, the minimum contacts requirement likely is not satisfied, and the court lacks PJ to adjudicate the matter.
What is the rule for notice?
Reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.
In what form can notice be?
If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required. If the plaintiff knows that the defendant did not receive notice, then the plaintiff cannot proceed unless there are no other reasonable methods to notify the defendant.
If the identity or address of an interested party is not obtainable through reasonable efforts, then other means, such as publication of notice in newspapers, may be satisfactory. The constitutional test is, generally, what is reasonable under the circumstances.
Summons must be served with a copy of the complaint. Rule 4(m) gives the plaintiff 90 days after the filing of the complaint to serve the summons, with extensions for good cause shown. Rule 4(m) does not apply to service in a foreign country.
The person actually serving the summons must meet 2 requirements:
(1) . They must be at least 18 years old.
(2) . They must not be a party to the lawsuit. (A party’s attorney is not considered a “party.”)
FRCP allow P to serve the summons by following state law (even though the complaint was filed in federal court):
(1) . The state within which the complaint is filed.
(2) . The state within which service is actually made.
FRCP provides three more options:
(A) delivering a copy of the summons and complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
For corporations: Plaintiff can have the complaint served “by delivering a copy of the summons and of the complaint to an officer (management), a managing or general agent (invested with substantial authority), or any other agent authorized by appointment or by law to receive service of process.” In certain cases, the summons and complaint may also have to be mailed to the defendant as an additional measure.
What are defenses to jx claims?
- Special appearance: Procedure by which D appears before a court for the specific purpose of challenging personal jurisdiction. D is generally not considered to have consented to jurisdiction by making the special appearance, as long as personal jurisdiction is contested in the defendant’s initial pleading. If anything going to the merits of the case is raised in the pleadings, then D will likely be found to have made a general appearance in the case and waived any objection with regard to PJ. FRCP abolished, but a party may make a motion to dismiss the claim for lack of PJ under Rule 12(b)(2) without becoming subject to jurisdiction on that basis.
- Collateral attack: Full Faith and Credit Clause decisions recognized only to the extent that a valid judgment was rendered by a court that had jurisdiction over the parties, and the parties received proper notice of the action and a reasonable opportunity to be heard. So D may collaterally attack the judgment on the basis of lack of PJ. If, however, the D had both notice and an opportunity to be heard, then a collateral attack on the judgment is not permitted under the doctrine of res judicata.
- Immunity: Most states provide immunity from service of process to nonresidents who enter the state for the purposes of attending a trial or deposition as a witness, party, or attorney. The theory behind such immunity is that it promotes full and active participation in the judicial system. The federal courts also generally provide immunity from federal suit under the same circumstances.
What is the general venue rule?
In general, venue in a federal civil action is proper in (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located. Otherwise, where any D is subject to PJ.
A defendant that is an entity with the capacity to sue and be sued, regardless of whether incorporated, is deemed to reside in any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question.
What is someone’s residence for venue purposes?
Individuals: Judicial district where D is domiciled.
D entities: In any judicial district in which the entity is subject to PJ with respect to the civil action in question. In a state that contains multiple judicial districts and in which a X corporation is subject to PJ at the time the action is commenced, the corporation “shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to PJ if that district were a separate State.” If there is no such district, then the corporation is deemed to reside in the district with which it has the most significant contacts.
P entities: Judicial district where principal place of business is located.
When original venue is proper, when is a change in venue ok? Whose law will they apply?
Transfer permitted to any district where case could have been brought or to which all parties consent.
DJ: New district court must apply law from previous court.
FQ: New district court in another appellate circuit will apply fed law as interpreted by its court of appeals (not the appellate circuit of the transferring district court).
When original venue was improper, what happens and whose law is applied?
Dismiss case or transfer case to proper district if it’s in the interest of justice.
DJ: District court to which the case is transferred applies the choice-of-law rules of the state in which it is located (not the state law of the court transferring the case).
FQ: New court will apply its own court of appeals’ interpretation of law (not the appellate circuit of the transferring district court).
Can a court lacking PJ over a D transfer the case to a different venue?
Yes
Forum non conveniens:
CL doctrine that allows a court to dismiss an action—even if PJ and venue proper—if the court finds that the forum would be too inconvenient for parties and witnesses, and that another, more convenient, venue is available.
We now allow the remedy of transfer as opposed to outright dismissal. So doctrine now used by a federal district court primarily when the forum that is deemed most appropriate for the action is a state or foreign court.
Factors generally considered include:
(i) the availability of an alternative forum;
(ii) the law that will apply; and
(iii) the location of the parties, witnesses, and evidence.
D ordinarily bears a heavy burden to displace the P’s chosen forum. However, a forum-selection clause shifts the burden to the P to show why the court should disregard the forum-selection clause. The Supreme Court has held that although a forum selection clause does not render venue improper in other districts, a motion to transfer to the forum state agreed to by the parties should be granted in “all but the most unusual cases.”
Erie doctrine:
- FQ: Federal substantive and procedural law controls, as well as federal common law (for enumerated list, since no general fed CL)
- DJ: State substantive law (of state where fed court sits; look to their choice of law rules); but federal procedural rules.
a) If some state rule vs. FRCP: Apply Fed Rules as long as constitutional and REA met: Ask if rule abridges, enlarges or modifies a substantive right. If yes, apply state rule. If no, apply fed rule if it only incidentally affects litigant’s substantive rights. Very rare that REA not satisfied. Almost always apply FRCP.
b) If some state rule vs. un-codified fed judicial practice: Ask if meaningful incentive to sue in fed court. If yes, then use state practice. If no, then use fed practice. Even if yes, if it’s an important fed interest, then still use fed practice.
Substantive or procedural for Erie purposes?
- Judge/jury allocation
- Assessment of attorney’s fees
- SOL and tolling provisions
- Elements of claim or defense
- Equitable/legal determination
- Burden of proof
- procedural (so fed law)
- procedural (so fed law)
- substantive (so state law)
- substantive (so state law)
- procedural (so fed law)
- substantive (so state law)
Since no general fed CL, fed CL applicable in the following areas:
- Admiralty cases
- When the U.S. is a party to the case
- Interstate disputes
- Cases implicating relations with foreign countries
- Cases in which the government acts in a proprietary role (e.g. enters into contracts, issues commercial paper, and oversees regulatory programs), and
- When Congress has left a gap in a statutory scheme
Under diversity jx, fed CL may still be applicable when there is…
A “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law.
If state court jx is concurrent with FQ jx and fed CL would have applied in fed court, then will it apply in state court?
Yes
How does a fed court decide which state’s law to apply in a diversity case?
Apply law of jx in which it is sitting and its conflict of law rules.
Timeline for service of process:
Within 90 days of filing a complaint
Waiver of service process and effect:
Request for waiver (with complaint) must be in writing, addressed to individual D or officer/agent of corporation, and give D reasonable time of at least 30 days after request sent to return waiver.
Effect: Extends time to serve answer from 21 (after service of process) to 60 days after waiver request sent (90, if foreign). If P and D both in US and D fails to waive for good cause, then D may have to reimburse P for formal service.
What are TROs and for how long are they effective?
A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction. This interlocutory injunction may remain in effect only a limited number of days, to be set by the court, and no longer than 14 days unless good cause exists or the adversary consents. Rule 65(b)(2). TROs are not generally immediately appealable, unless they have the effect of an injunction, as when the court extends the length of the TRO beyond the time limit specified in the rules.
Notice requirement for TROs/motion to dissolve:
Under Rule 65(b)(1), a TRO may issue without notice to the adverse party if:
i) The moving party can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and
ii) The movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.
Motion to dissolve: If the TRO is issued without notice, the adverse party may appear and move to dissolve or modify the TRO, but must give the party who obtained the TRO two days’ notice unless a shorter time is set by the court. Rule 65(b)(4).
What is a preliminary injunction and when can it be issued?
A preliminary injunction is a form of relief issued prior to a full hearing on the merits, but only upon notice to the defendant and a hearing on whether the injunction should issue.
Should an expedited decision on the merits be appropriate, a court may order a trial on the merits to be consolidated with the preliminary injunction hearing. Rule 65(a).
A plaintiff seeking a preliminary injunction must establish that:
i) He is likely to succeed on the merits;
ii) He is likely to suffer irreparable harm in the absence of relief;
iii) The balance of equities is in his favor; and
iv) The injunction is in the best interests of the public.
What is a permanent injunction and its standards?
A permanent injunction is a determination on the merits. Once issued, it continues until dissolved by the court, but any affected person may move for modification or dissolution. The standard for a permanent injunction is essentially the same as for a preliminary injunction except that the plaintiff must show actual success on the merits.
Complaint (definition, content, timing):
The complaint is the initial pleading in an action filed by the plaintiff and serves as notice to the opposing party.
Under Rule 8(a), a complaint (or any pleading in which a claim is made) must include:
i) A short and plain statement of the grounds that establish the court’s SMJ;
ii) A short and plain statement of the claim establishing entitlement to relief; and
iii) A demand for judgment for the relief sought by the pleader.
A complaint will generally be filed before service on the defendant(s), which must then generally occur within 90 days of filing. Rule 4(m).
When is response to a complaint due?
Under Rule 12, within 21 days of service of process, a defendant must respond to a complaint either by an answer or by a pre-answer motion, or she must seek additional time to answer. If a defendant does not take one of these steps, then she risks a default.
12(b) MTD (and timing):
Prior to filing an answer, D may file a motion raising any or all of the following defenses:
i) Lack of SMJ (may be raised at any time, even on appeal);
ii) Lack of PJ (must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer or within the time for amending the answer as of right, or the defenses will be waived);
iii) Improper venue (must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer or within the time for amending the answer as of right, or the defenses will be waived);
iv) Insufficient process (must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer or within the time for amending the answer as of right, or the defenses will be waived);
v) Insufficient service of process (must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer or within the time for amending the answer as of right, or the defenses will be waived);
vi) Failure to state a claim upon which relief can be granted (may be raised in any pleading, in a motion for judgment on the pleadings, or at trial);
vii) Failure to join a necessary or indispensable party under Rule 19 (may be raised in any pleading, in a motion for judgment on the pleadings, or at trial).
Such motions generally seek dismissal of the claim. For the defenses of insufficient process and service of process, though, it is common to make a motion to quash the service of process or the process itself.
12(b)(6) (MTD for failure to state a claim upon which relief can be granted):
Under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim.
In deciding a motion under Rule12(b)(6), courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the pleading in the light most favorable to the plaintiff.
12(b)(6) standard of proof:
The facts alleged in the complaint must “raise a right to relief above the speculative level … on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” The complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.
What can the court consider when deciding on a 12(b)(6)?
In ruling on a motion to dismiss under Rule 12(b)(6), the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice.
If a matter outside the pleadings, such as an affidavit, is presented to the court and is not excluded by the court in its review, then the motion must be treated as a motion for summary judgment under Rule 56, and all parties must be given an opportunity to present all material information for the court’s consideration. Rule 12(d). Note that a court also can consider other matters with regard to a motion to dismiss under other Rule 12(b) defenses.
What is the court’s process in deciding on a 12(b)(6)?
- The court must identify and reject legal conclusions unsupported by factual allegations. This includes mere conclusory statements and assertions devoid of facts.
- The court should assume the truth or veracity of well-pleaded factual allegations and should include a “context specific” analysis that “draw[s] on [the Court’s] judicial experience and common sense” to determine whether the allegations “plausibly give rise to an entitlement of relief.”
Motion for judgment on the pleadings (12(c)):
After answer filed, allows court to dispose of a case when material facts are not in dispute and judgment on merits can be achieved based on content of pleadings.
The standard for a motion under Rule 12(c) is generally the same as that for a motion under Rule 12(b)(6). Likewise, if matters outside the pleadings are presented to the court and the court does not exclude them, then the motion is to be treated as a motion for summary judgment under Rule 56.
Motion for more definite statement:
Responding party may move for more definite statement if claim for relief is so vague or ambiguous that party cannot reasonably draft responsive pleading.
The party must make a motion for a more definite statement before filing a responsive pleading. The court may strike a party’s pleading if the party fails to respond to a court order granting this motion within 14 days of the notice of the order. Rule 12(e).
Motion to strike:
When pleading contains insufficient defense, or redundant, immaterial, impertinent, or scandalous material, court may order such defense or material stricken.
Can be used to avoid unnecessary time and money in litigating invalid issues.
When a responsive pleading is permitted, the responding party must move to strike prior to responding to such a pleading. When no responsive pleading is permitted, the party must make a motion to strike within 21 days after service of the pleading.
