FRCP Flashcards
Process
Process includes a Summons and Complaint
Who can serve process
Any person who is at least 18 years old and not a party to the action may serve process
personal service
Papers given to D personally ANYWHERE
Substituted Service
Process is left at D’s USUAL PLACE OF ABODE with one of suitable age and discretion residing therein
Does not need to be someone related to D
Service on Agent
May validly serve process upon an authorized agent of the D, so long as receiving service is in the scope of the agency relationship (usually obviously met)
State law of service
Federal courts recognize the service rules of the state where the federal court sits OR where service is effectuated
Waiver by mail
Copy of complaint and TWO copies of a waiver form, with a prepaid means of returning teh forum
If D executes and mails waiver form to P within 30 DAYS, D waives formal process of service
If D fails to return the waiver form and does not have good cause for not doing so, must pay the cost of subsequent service
NOTE: federal rules do NOT have service by mail, only waiver by mail.
Return of Service
person who served process must file a report with the court detailing how service was made
NOTE: failure to file this report does not invalidate service
Service of other documents other than process
No formal rules. Simply deliver or mail to the other party’s attorney
Email is fine if the party agrees to receive by email
Complaint
Filing of complaint commences the action
Must contain (1) grounds for SMJ*; (2) short and plain statement of the claim showing that pleader is entitled to relief; and (3) demand for the relief sought (injunction, damages, etc.)
Federal courts require to plead facts supporting a PLAUSIBLE, not just possible, claim
Fraud, mistake, and special damages require extra particularity and specificty
NOTE: no need to allege grounds for PJ* or venue
Time to Respond
Two types: motion or answer
Must file one of these two things WITHIN 21 DAYS to avoid default judgment
NOTE: if you WAIVE SERVICE, you get 60 DAYS from when waiver form was sent
Motion for a more definite statement
party may request a motion for more definite statement before responding with an answer
Motion to Dismiss
Rule 12(b) motions: include
(1) lack of SMJ; (2) lack of PJ; (3) improper venue; (4) improper process; (5) improper service of process; (6) failure to state a claim; (7) failure to join an indispensable party
Waiver of defenses
IMPROPER PJ*, VENUE, PROCESS, AND SERVICE OF PROCESS ARE WAIVABLE
waived if not put in the FIRST rule 12 response (motion or answer)
Defense of failure to state a claim or join an indispensable party
These defenses may be made at ANY TIME PRIOR TO TRIAL or AT TRIAL
Subject Matter J* waivability
Can never be waived
Answer
Contains specific denials or admissions of each averment of the complaint, or a general denial with specific admissions.
Must also contain affirmative defenses (SoL, SoFrauds, res judicata, self-defense). Waived if not contained in answer
If D lacks sufficient knowledge, can say so. Treated as a denial
Failure to explicitly deny constitutes an admission, with the exception of damages
Timing of Answer
If no pre-answer motions were made, D who was formally served has 21 DAYS after service to respond. If Waived service, you have 60 DAYS after request for waiver was mailed
If Pre-answer motion was made and court does not set a date, answer must be served with 14 DAYS after court’s denial or postponement of the motion
Default
Notation in the case file by the clerk that there has been no answer filed within the time period required.
Defaults may be set aside by the court. Clerk is required to send all parties, including defaulting party, a notice that default has been entered
Default Judgment
judgment entered against D because he did not respond.
If defaulting D has appeared, he is entitled to notice at least seven days prior to the hearing on the default judgment. Once judgment entered, D loses ability to contest liability, but can appear at hearing for damages and contest damages
Counterclaim
Claim asserted against an opposing party
Counterclaims are included in D’s answer. P must respond to counterclaims within 21 DAYS
Compulsory Counterclaim
A claim that arises from the same transaction or occurrence as the original claim
MUST BE PLEADED OR ELSE IT WILL BE WAIVED
Must either have diversity or FQJ*, or get in under supplemental jurisdiction. Usually won’t be a problem b/c if truly compulsory, it will be same TOO and supplemental will apply
Permissive Counterclaim
counterclaim that does NOT arise from the same TOO as P’s claim.
Not required to file in this case, can sue later.
Crossclaim
Claim against a co-party.
MUST arise from the same TOO as underlying action, but NOT COMPULSORY
Can choose to sue now or later.
Must have independent grounds for J, or it must have supplemental J (limitation does not apply b/c not a claim by a P)
Additional Claims
once counterclaim or crossclaim is filed, you can add additional claims, even if not related to other claims
Must have independent grounds for J* or supplemental, however.
Amended Pledings
P has right to amend pleading ONCE within 21 DAYS after D serves her first Rule 12 response
D has right to amend ONCE within 21 days of serving his answer
If no right to amend, must seek leave of court. Granted if court finds “Justice so requires” an amendment. Factors: delay, prejudice, and futility of amendment
Variance
Occurs when P’s evidence at trial does not match the claims pleaded
If D does not object, P allowed to amend complaint to conform to the evidence
If D objects, evidence is inadmissible because it is at “variance with the pleadings”
Relation Back to join a new claim
Def – treating the amended pleading as though it was filed when original pleading was filed to avoid SoL problems
Amended pleadings “relate back” if they concern the same conduct, transaction, or occurrence as the original pleading
Relation back to join a new party
Relate back only if: (1) it concerns the same conduct, transaction or occurrence as the original; (2) the new party knew of the current case within 120 days of its filing; and (3) the new party knew that, but for the mistake, she would have been named in the original pleading
Applies when P sues the wrong D but right D knew about it
Supplemental pleadings
Concern things that happen AFTER pleading was filed. Amended pleadings deal with things that happened before, but were not asserted initially
NEVER A RIGHT TO A SUPPLEMENTAL PLEADING. always up to the judge’s discretion
Usually granted however unless if it will cause delay or unfair prejudice
Rule 11
Applies to all documents, EXCEPT FOR DISCOVERY
When L or pro se party signs documents, she certifies that to the best of her knowledge and belief, after REASONABLE INQUIRY:
(1) the paper is not for an improper purpose (harassment, delay, etc.);
(2) the legal contentions are warranted by law or is a nonfrivolous argument to modify an existing law; AND
(3) the factual contentions and denials have evidentiary support, or are likely to have support after further investigation
Rule 11 sanctions
Purpose is to deter, not punish
before imposition of a sanction, court must give you a chance to be heard.
Often, courts impose non monetary sanctions (attend courses, etc.). If monetary sanctions are imposed, they usually go to the court, not to the other party
Rule 11 motions
Serve motion on the OTHER PARTY first (DO NOT FILE). Party in violation has a 21 DAY SAFE HARBOR to fix the problem and avoid sanctions. Only after this may the motion be filed.
NOTE: court is always free to raise Rule 11 problems sua sponte (on its own)
