FRCP

Question 1

Process

Answer 1

Process includes a Summons and Complaint

Question 2

Who can serve process

Answer 2

Any person who is at least 18 years old and not a party to the action may serve process

Question 3

personal service

Answer 3

Papers given to D personally ANYWHERE

Question 4

Substituted Service

Answer 4

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

Question 5

Service on Agent

Answer 5

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)

Question 6

State law of service

Answer 6

Federal courts recognize the service rules of the state where the federal court sits OR where service is effectuated

Question 7

Waiver by mail

Answer 7

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.

Question 8

Return of Service

Answer 8

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

Question 9

Service of other documents other than process

Answer 9

No formal rules. Simply deliver or mail to the other party’s attorney

Email is fine if the party agrees to receive by email

Question 10

Complaint

Answer 10

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

Question 11

Time to Respond

Answer 11

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

Question 12

Motion for a more definite statement

Answer 12

party may request a motion for more definite statement before responding with an answer

Question 13

Motion to Dismiss

Answer 13

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

Question 14

Waiver of defenses

Answer 14

IMPROPER PJ*, VENUE, PROCESS, AND SERVICE OF PROCESS ARE WAIVABLE

waived if not put in the FIRST rule 12 response (motion or answer)

Question 15

Defense of failure to state a claim or join an indispensable party

Answer 15

These defenses may be made at ANY TIME PRIOR TO TRIAL or AT TRIAL

Question 16

Subject Matter J* waivability

Answer 16

Can never be waived

Question 17

Answer

Answer 17

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

Question 18

Timing of Answer

Answer 18

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

Question 19

Default

Answer 19

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

Question 20

Default Judgment

Answer 20

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

Question 21

Counterclaim

Answer 21

Claim asserted against an opposing party

Counterclaims are included in D’s answer. P must respond to counterclaims within 21 DAYS

Question 22

Compulsory Counterclaim

Answer 22

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

Question 23

Permissive Counterclaim

Answer 23

counterclaim that does NOT arise from the same TOO as P’s claim.

Not required to file in this case, can sue later.

Question 24

Crossclaim

Answer 24

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)

Question 25

Additional Claims

Answer 25

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.

Question 26

Amended Pledings

Answer 26

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

Question 27

Variance

Answer 27

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”

Question 28

Relation Back to join a new claim

Answer 28

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

Question 29

Relation back to join a new party

Answer 29

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

Question 30

Supplemental pleadings

Answer 30

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

Question 31

Rule 11

Answer 31

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

Question 32

Rule 11 sanctions

Answer 32

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

Question 33

Rule 11 motions

Answer 33

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)