Federal Rules of Civil Procedure

Question 1

When does a COA commence?

Answer 1

when complaint is filed in court

Question 2

Who may serve process?

Answer 2

any one who is at least 18 and not party to action

Question 3

When must service be completed?

Answer 3

w/in 90 days of filing the complaint

Question 4

How can an individual be served?

Answer 4

1. personal service (handing it off)
2. service at person’s place of abode w/ one of suitable age/discretion residing therein;
3. service upon authorized agent of D

Question 5

How can a corporation be served?

Answer 5

serving an officer, a managing/general agent, or authorized agent of the corp.

Question 6

How can a minor/incompetent person be served?

Answer 6

in accordance w/ state rule where service is to be made

Question 7

How can a ct acquire PJ over parties served outside the state?

Answer 7

1. under state statutes and rules for extraterr. service
2. if they are 3rd party Ds or required to be joined for just adjudication, if served w/in 100 miles of place where action is pending
3. if out of state service is permitted by federal statute
   and
4. for cases that involve FQ, if D is served w/ process, provided that he is not subj. to general jurisdiction of any state, has sufficient contacts w/ U.S.

Question 8

When can someone be immunized from service?

Answer 8

if they enter the state to appear for another action

Question 9

When will the court NOT grant an extension of time?

Answer 9

renewed motions for judgment as matter of law, motions to amend judgment, and motions for new trial (need to filed w/in 28 days of entry of judgment and motions for relief from judg)

Question 10

What is an injunction granted while a case is still pending?

Answer 10

interlocutory injunction - granted to maintain the status quo until a trial on the merits

Question 11

What are the two types of interlocutory injunctions?

Answer 11

1. TROs

2. preliminary injunction

Question 12

What is a TRO?

Answer 12

temp. restraining order - sought if irreparable injury will occur before a hearing

generally need to give notice to adverse party, but this can be avoided if:

1. irreparable injury will be suffered if TRO is not granted
2. explains in writing why notice should not be required and
3. provides security to pay for damages incurred to adv. party if ct later finds it was wrongfully restrained

lasts for 14 days - but can be extended (if extended beyond, considered a prelim. injunction and may then be appealed)

Question 13

What is a preliminary injunction?

Answer 13

similar to a TRO, but adv. party must be given notice and oppty to be heard

will be granted if:
1. PL will suffer irrep harm if not granted
2. harm to PL outweighs harm to D
3. PL shows that he likely to be successful on merits
and
4. public interest favors granting the injunction

• if party has an adeq remedy at law, no inj granted

Question 14

What must a complaint contain?

Answer 14

1. grounds of fed juris
2. short statement of the claim showing that pleader is entitled to relief
   and
3. demand for judg for relief, which may be in the alternative

Question 15

What kind of facts must the complaint contain?

Answer 15

those that make the claim plausible, not just possible

Question 16

How must fraud/mistake be pleaded?

Answer 16

with particularity

Question 17

Prior to answer, what kind of motions can D file?

Answer 17

Motion to dismiss
motion for more definite statement (before resp. to pleading that is vague)
motion to strike (insuff. defense or any redundant, immaterial, scandalous matter)

Question 18

What are the different grounds for MTD?

Answer 18

lack of SMJ
lack of PJ
improper venue
insufficiency of process
insufficiency of service of process
failure to state claim upon which relief can be granted
failure to join a party under rule 19 (indispensable)

Question 19

Which MTD grounds can be raised at any time, even on appeal?

Answer 19

lack of SMJ

Question 20

Which MTD grounds will be waived if not raised by motion or answer (whichever is first)?

Answer 20

lack of PJ
improper venue
insufficiency of process
insufficiency of service of process

Question 21

Which MTD grounds may be raised at any time before trial or at trial?

Answer 21

failure to state claim upon which relief can be granted

failure to join a party under rule 19 (indispensable)

Question 22

What must the answer contain?

Answer 22

specific denial or admission of each averment
or
general denial w/ specific admissions of averments

if w/o knowledge or information sufficient to form a belief = a statement to that effect constitutes a denial

any affirmative defenses

Question 23

What happens when D fails to deny averments in complaint?

Answer 23

admission

Question 24

How long does D have to file answer?

Answer 24

21 days after service if no pre-answer motion is made

if pre-answer motion is made and ct does not fix another time, pleading must be served w/in 14 days of ct denial or postponement of motion

due 14 days after service of a more definite statement if ct grants mt for new one

Question 25

What is the effect of a failure to answer?

Answer 25

default (no answer notation in file)

can be set aside by ct

Question 26

What is a default judgment?

Answer 26

entered against D because he did not oppose the case

if defaulting D appears, entitled to notice at least 7 days prior to hearing on application for default judg

can only contest damages after judg is entered, not liability

Question 27

What is a compulsory counterclaim?

Answer 27

claim arises from same transaction or occurrent as the PLs that must be pleaded as CC or it will be thereafter barred

fed ct has SJ over cc that otherwise does not meet DCJ or FQJ

Question 28

What is a permissive counterclaim?

Answer 28

any claim the D has against PL that can be asserted IF it meets jurisdic requirements for filing claim in fed ct

Question 29

What is reply?

Answer 29

from PL in response to D’s answer - required if ct orders Pl to file one

PL does not need to reply to D’s aff defense

Question 30

Can a party plead inconsistent claims?

Answer 30

yes (and defenses for D)

Question 31

When can a pleading be amended?

Answer 31

w/in 21 days of service or 21 days after service of responsive pleading or pre-answer motion (thereafter, need ct permission)

Question 32

What is the relation-back doctrine?

Answer 32

for SOL purposes, amendment to pleading that arises from same conduct/transaction in orig pleading is deemed filed on date of orig pleading

Question 33

Does an amendment naming a new adverse party relate back?

Answer 33

yes, if w/in time tor service of process the new party had sufficient notice of action to avoid prejudice and knew she should have been named in orig

Question 34

Do supplemental pleadings require court permission?

Answer 34

yes (relate to matters in orig. pleading)

Question 35

What does Rule 11 certification require?

Answer 35

atty certifies that to the best of her knowledge

1. pleading is not presented for improper purposes (harassment, delay);
2. legal contentions are warranted by existing law or nonfriv arg for modification of existing law or est of new law;
3. allegation and factual contentions have or are likely to have evidentiary support; and
4. denials of factual contentions are reasonably based on lack of info/belief or warranted on evidence

Question 36

What is the consequence of violating Rule 11 certification?

Answer 36

ct may impose sanctions

1. ct may on its own enter order describing violation and direct proponent to show cause for sanctions or
2. opposing party may serve motion for sanctions and if party does not withdraw w/in 21 days, file motion with court

Question 37

What are the sanctions available under Rule 11

Answer 37

monetary penalties (payment of expenses or atty fees)
** no monetary sanction can be imposed on represented party for violation of cert.

Question 38

What is compulsory joinder (indispensable parties)?

Answer 38

PL must join all interested parties or face dismissal of suit

three questions:

1. should the absentee be joined;
   - must be joined when complete relief cannot be accorded w/ current parties or absentee has usch an interest in subj matter than absence will impair/impede ability to protect int or leave other parties subj to subst risk of incurring multiple obligations

if should be joined, next

2. can the absentee be joined; and
   - if ct has PJ over absentee and absentee’s presence would not destroy SMJ or venue, must be joined
   - if no PJ or would destroy, then we go to next question:
3. if absentee cannot be joined, should the action proceed
   - if cannot be joined, ct should look to
   a. extent of prejudice to absentee or avail. parties
   b. extent to which prejudice would be reduced/avoided
   c. adequacy of judg. rendered w/o absentee and
   d. whether party will have adeq remedy in another forum if case is dismissed for nonjoinder

if can’t proceed in equity: action dismissed (party = indispensable); if can - proceeds

Question 39

What is permissive joinder?

Answer 39

parties can join as PLs or D when

1. some claim is made by each PL and against each D arising from same occurrence or series; and
2. question of fact or law common to all parties

** MUST HAVE JURISDICTION OVER THE PARTIES (must be compl div and AIC, except PL w/ undivided int can aggregate)

could still be SJ over claims by permissively joined PL

Question 40

What are the requirements for a class action to be proper?

Answer 40

1. numerous - class is so num. that joinder of all members is impracticable
2. commonality - Qs of law/fact common to all
3. typicality - named parties’ interests are typical of class
4. fair and adeq. rep. - named parties will rep interest of absent members of class

and

one of the following:

1. separate actions would produce inconsistent results / impair interests
2. injunctive or declaratory relief is appropriate bc. of D’s actions
3. common question of law or fact predominate over individ. issues and CA is superior to alt. methods of adjudication

Question 41

When can ct determine that a CA is not the appropriate remedy?

Answer 41

any time - but should decide early whether to certify

Question 42

When is notice required in CA?

Answer 42

notice to all members is required only in common Qs suits so that class members can opt out

1. nature of action
2. definition of class
3. class claims, issues, defenses
4. binding effect of class judg.

Question 43

Must the court approve settlement/dismissal of CA?

Answer 43

yes

Question 44

What is an interpleader suit?

Answer 44

instituted by a person in position of a stakeholder to require the adverse claimant to determine which has the valid claim to the stake (applies if separate actions might result in double liability against the stakeholder)

Question 45

What is intervention?

Answer 45

may be granted to a party of right or permissively

intervention of right available if
1. applicant claims an interest in the property or transaction that is the subj matter of action
2. disposition of action without him may impair ability to protect interest
and
3. current parties do not adequately present the intervenor’s rights

Question 46

Is there SJ for intervention suits?

Answer 46

No - (claims by orig. PLs against intervening D or intervening Ps) – these can proceed only if there were independent basis for juris. (div or fq)

Question 47

When is permissive intervention available?

Answer 47

applicant’s claim or defense and the main action have a common question of fact/law (no direct personal or pecuniary interest is required)

• need only jurisdictional ground and is discretionary w/ ct

Question 48

What is a cross-claim?

Answer 48

claims asserted against co-parties that arise out of same transaction/occurrence (fall under SJ)

Question 49

What is third-party (impleader) practice?

Answer 49

defending party may implead non-party who is or may be liable to him for any part of judg that PL may recover against him (indemity)

if no FQ or DIV, SJ is available (common nucleus)

defending party can join other claims against third-party (need some jurisdictional basis)

third party can assert defenses to orig PL claim and defense to third party liability asserted against him (ct can severe third party claim if just)