Erie and Pleadings

Question 1

28 USC 1652

Answer 1

Rules and Decision Act

The laws of the states, except where the Constitution or treaties of the United States or Acts of Congress otherwise provide, shall be regarded as rules of decision in civil actions in the courts of the United States

Question 2

28 USC 2071(a)

Answer 2

Rules Enabling Act: gives fed courts the right to prescribe rules for conduct of their business

Question 3

28 USC 2072

Answer 3

Rules Enabling Act: gives fed courts the power to prescribe rules of practice, procedure, and evidence as long as they do not abridge, modify, or enlarge any substantive right

Question 4

FRCP 8(a)

Answer 4

Pleading:

(1) a short and plain statement of the grounds for the court’s jurisdiction

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Question 5

FRCP 4(a)

Answer 5

Summon Requirements: name the court and the parties;

be directed to the defendant; state the name and address of the plaintiff’s attorney; state the time when defendant must appear; notify defendant that a failure to appear and defend will result in a default judgment; be signed by the clerk; and

bear the court’s seal.

Question 6

FRCP 4(c)

Answer 6

Service: with copy of complaint and summons; anyone older than 18 can serve

Question 7

Other Service Requirements under FRCP 4

Answer 7

Notice must be received by:

Agent authorized to receive

The person themselves

If the person themselves is not home,

A person of “suitable age/discretion” who resides there at the residence” may accept the notice

State statutes will specify an age, some will not

A corporate defendant can be served by delivering a copy of the complaint and summons to any of these three: a corporate officer, a corporation’s managing or general agent, or any other agent authorized by appointment to receive a summons on the corporation’s behalf

Question 8

FRCP 8(b)

Answer 8

Answers: Defenses; Admissions and denials; defendant must admit or deny everything, otherwise its admitted

Question 9

FRCP 8(c)

Answer 9

Affirmative defenses: defendant must assert any affirmative defenses

Question 10

FRCP 12(a)

Answer 10

Motion to dismiss: must be within 21 days of being served

Question 11

FRCP 12(b)

Answer 11

Reasons for MtD: lack of SMJ; PJ; Venue; insufficient process; Service of process; failure to state a claim upon which relief can be granted; failure to join a party under Rule 19

Question 12

FRCP 12(c)

Answer 12

Motion for judgement of pleadings: plaintiff can move for if defendant admits to facts as to satisfy every element of a claim

Question 13

FRCP 13(a)

Answer 13

Counter Claims: Defendant must assert any counter claims arising out of the same facts

Question 14

FRCP 13(b)

Answer 14

Counter Claims: any compulsory CC not asserted are waived

Question 15

FRCP 15(a)

Answer 15

Amended Pleadings: Amend as a right within 21 days; after there must be consent of parties, or if the court decides justice would require amendments

Question 16

FRCP 15(c)(d)

Answer 16

Amending/supplemental pleading: can add claims after statute of limitations if the claims relate back to the original claim; can also switch out defendant with correct one if the correct party knew it would have been in the suit but for a mistake concerning their proper identity