FRCP

Question 1

who may serve process?

Answer 1

Any person:

• at least 18 years old
• not a party to the action

Question 2

What is the time limit for service of process?

Answer 2

Generally, within 90 days of the complaint being filed

*Court may extend for good cause

Question 3

How is service made on an individual?

Answer 3

An individual may be served by:

1) personal service
2) service left at D’s usual place of abode with one of “suitable” age and discretion residing therein
3) service upon an authorized agent of D
* A person of “suitable age and discretion” is generally a person who is older than 14

Question 4

How is service made on a minor or incompetent person?

Answer 4

Must be served ONLY in accordance with the rules of the state in which service is to be made

Question 5

How is service made on a corp., partnership, etc.?

Answer 5

May be served on an officer, a managing or general agent, or an authorized agent of the corp.

Question 6

Service under state laws

Answer 6

Service may be made as provided for by the rules of the state in which the federal court sits or the state in which service is to be effected

Question 7

Waiver of service by mail

Answer 7

P may also request D waive service of process; must mail documents, including a formal request to waive service, two copies of the waiver form, and a copy of the complaint.
*D generally has 30 days from when request was sent to return waiver

Question 8

TRO (Interlocutory injunction)

Answer 8

Requirements for ex parte TRO:

1) specific facts showing immediate and irreparable injury
2) efforts to give notice
3) security

Question 9

TRO - time limit

Answer 9

TRO will expire within 14 days, unless extended for good cause
TRO becomes preliminary injunction if extended beyond 28 days

Note: Due Process requires a person receive actual notice of TRO before held in contempt for violating it

Question 10

Preliminary Injunction

Answer 10

Sought by a party prior to trial on the merits of the complaint; may not be issued without formal notice to the adverse party

Question 11

Requirements for Preliminary Injunction

Answer 11

Granted when:

1) P will suffer irreparable harm before conclusion of the trial if injunction is not granted;
2) the harm to P if the injunction is not granted outweighs the harm to D if the injunction is granted;
3) P shows that they are likely to be successful on the merits; AND
4) public interest favors granting the injunction

*Irreparable harm is most important factor; if party seeking injunction has an adequate remedy at law, injunction will be denied

Question 12

Provisional Remedies

Answer 12

Garnishment -> court order directing money or property in hands of a third party be seized

Attachment -> process by which another’s property is seized in accordance with a writ or judicial order for purpose of securing a judgment yet to be entered

Replevin -> process by which P takes possession of and holds disputed property duty the lawsuit

Question 13

Pleadings

Answer 13

Pleadings serve the function of giving notice to the opposing parties

Question 14

Complaint

Answer 14

Each claim for relief should contain:

1. a short statement of the grounds for court’s jdx;
2. a short statement of claim showing hat pleader is entitled to relied; AND
3. a demand for judgment for relief, which may be in the alt

• Detailed assertions of fact underlying the claim generally are not required
• May be required to state facts supporting a plausible claim

Question 15

Pre-answer motions: Rule 12(b)

Answer 15

Prior to answer, D may file motion and raise defenses:

1. lack of SMJ;
2. lack of PJ;
3. improper venue;
4. insufficient process;
5. insufficient service of process;
6. failure to state a claim upon which relief can be granted; or
7. failure to join necessary party needed for just adjudication

• SMJ may be raised at any time – even on appeal
• D must raise 2-5 at time in first pleading (motion or answer), otherwise waives defenses
• 6-7 can be made anytime prior to trial

Question 16

Answer

Answer 16

Must contain a specific denial or admission of each averment of the complaint, or a general denial with specific admissions to certain averments

• Note: a failure to deny constitutes an admission
• Note: answer must also state any affirmative defenses D may have

Question 17

Answer - time

Answer 17

D must file answer within 21 days after service; if D was mailed and waived formal service, D must file answer within 60 days after request for waiver was mailed

Question 18

Compulsory counterclaims

Answer 18

If counterclaim arises out of the same transaction or occurrence as one of P’s claims, it must be pleaded or it will be barred

Question 19

Default

Answer 19

A default is a notation in the case file by the clerk that there has been no answer filed within the time permitted by rules

Question 20

Default judgment

Answer 20

A judgment that is entered because D did not oppose the case

D loses the right to contest liability, but the amount of damages must still be determined before a default judgment may be entered, and D may be heard at hearing for damages

Question 21

Default judgment entered by the clerk

Answer 21

On request of P, supported by affidavit as to the amount due, clerk may sign and enter judgment if:

1) P’s claim against defaulted D is for a SUM CERTAIN;
2) the default was entered because D failed to appear;
3) default D is not an infant or incompetent person; AND
4) damages amount requested is not greater than the amount requested in the complaint

Question 22

Notice required - default

Answer 22

If D has “appeared,” D must be notified of the request for a default judgment by first-class mail at least 7 days before the hearing on the application for a default judgment

Question 23

amendment

Answer 23

Pleading may be amended once within 21 days of service, otherwise need written consent of opposing party or leave of court

if amendment arises from the same conduct, transaction, or occurrence, relate back to the filing date of the original pleading

Question 24

compulsory joinder

Answer 24

Analysis:

1) should absentee be joined?
2) can absentee be joined?
3) if not, should action proceed in his absence?

Question 25

should absentee be joined?

Answer 25

Should be joined when:

1. complete relief cannot be accorded among the other parties to the lawsuit without the absentee being made a party; or
2. absentee has such an interest in the subject matter of the suit that a decision in his absence will a) impair or impede his ability to protect the interest or b) leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations

Question 26

can the absentee be joined?

Answer 26

Whether court can obtain personal jdx over the absentee
whether the court will still have SMJ over the action after joinder

If court has PJ, and joinder will not destroy diversity or venue, absentee must be joined

Question 27

should action proceed without the absentee?

Answer 27

“in equity and good conscience” should the action proceed among the parties, or should it be dismissed? Consider:

1. the extent of prejudice to the absentee or available parties of a judgment;
2. extent to which prejudice can be reduced or avoided by means of protective provisions in the judgment, the shaping of relief, or other measures;
3. the adequacy of a judgment rendered without the absentee; and
4. whether P will have an adequate remedy in another forum if the case is dismissed for nonjoinder

Question 28

Class action

Answer 28

Named reps can sue on behalf of class if:

1. class is so numerous that joinder of all members is impracticable;
2. question of law or fact common to class;
3. named parties’ interests are typical of class;
4. named parties ensure fair and adequate representation of the interests of absent members of class
5. action
   - -> separate actions would create risk of inconsistent results or would impair the interests of other absent members of the class; or
   - -> D has acted on grounds applicable to class and injunctive relief is appropriate for class as whole; or
   - -> questions of fact or law common to members of class that predominate over individual issues

Question 29

Discovery - types of disclosure required

Answer 29

Required:

1) initial disclosures (names, addresses, numbers of individuals with discoverable info; copies of evidence disclosing party may use to support claims or defenses; computation of damages; copies of insurance) -> within 14 days after Rule 26 conference
2) expert testimony -> identities, qualifications, opinions to be expressed, basis for opinion; at least 90 days before trial, or 30 days to rebut
3) pretrial disclosures -> witnesses, depositions/ transcripts witnesses, documents or evidence intended to offer