Learning About the Case Flashcards
What is “process”?
- summons and
2. copy of the complaint
Who can serve process?
any nonparty who is at least 18 years old
What are the basic choices for service of process?
- personal service – given to ∆ personally anywhere
- substituted service - process is left at (a) ∆s usual abode and (2) with someone of suitable age and discretion who resides there
- service on ∆’s agent - if receiving service is in the scope of agency
Must ∆ reside somewhere every day of the year for it to qualify as his “usual abode”?
no - use common sense
Can you use methods for serving process permitted by state law when suing in federal court?
yes - state law of the state where the federal court sits OR where service is made
How does one complete service of process by mail>
mail ∆ a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form - if ∆ executes and mails waiver form to π within 30 days, ∆ waives formal service of process
if ∆ fails to return the waiver of service of process form - what result?
π then has ∆ served personally or by substituted service
if ∆ didn’t have good cause for failing to return the service of process waiver form is there a penalty?
yes - must pay the cost of service
Must the person who serves process file a report with the court?
yes - must detail how service was made; if server was a civilian the report is by affidavit
If the process server fails to file this report, does that affect the validity of service?
no
If a party mails documents to another party (e.g., interrogatories) - does the other party get extra time to respond?
yes - 3 extra days
When is an an action “commenced”?
when the complaint is filed with the court
What are the requirements of a properly pleaded complaint?
- statement of grounds of SMJ
- short and plain statement of the claim, showing entitled to relief;
- demand for relief sought
Must π allege grounds of PJ or venue in the complaint?
no
What is the standard for how much detail must be in the complaint?
must plead facts supporting a plausible claim (used to be only enough detail to put the other side on notice)
What three matters must be pleaded with particularity or specificity in a complaint?
- fraud
- mistake
- special damages
How must the ∆ respond to a complaint?
- by motion; or
2. by answer
to avoid default, when must the ∆ respond to a complaint?
within 21 days of service of process
Are motions considered “pleadings”?
no - they are requests for a court order
What are the 7 Rule 12(b) defenses?
- lack of SMJ
- lack of PJ
- improper venue
- improper process
- improper service of process
- failure to state a claim
- failure to join indispensable party
Where can a ∆ raise 12(b) defenses?
either in the motion to dismiss or in the answer
Which of the 12(b) defenses are “waivable”?
- lack of PJ
- improper venue
- improper process
- improper service of process
When must “waivable” defenses be raised?
in the FIRST rule 12 response - motion or answer
π sues ∆. ∆ files a timely motion to dismiss for improper service of process. The court denies the motion, after which the ∆ files and serves his answer, asserting lack of PJ and improper venue. Is this ok?
no - ∆ has waived both defenses; not in first rule 12 response
When is improper SMJ defense waived?
NEVER
What two things does an answer do?
- respond to allegations of the complaint
2. raise affirmative defenses
What are the options ∆ has for responding to the allegations of complaint?
- admit
- deny
- state that you lack sufficient info to admit or deny
Can you respond in an answer that you “lack sufficient info to admit or deny” if the answer is in your control?
no - you have a duty to investigate things in your control
What is ∆ never deemed to admit?
damages
What are the affirmative defenses raised in an answer?
defenses that inject new facts into the case, which will allow ∆ to win - statute of limitations, statute of frauds, res judicata, self-defense
π sues ∆ for breach of contract. ∆ answers, denying material allegations. At trial, ∆ introduces evidence that the contract was procured by π’s fraud and is therefore unenforceable. π objects. What result?
Sustained - ∆ has waived the affirmative defense because he failed to plead it in his answer
What is a “counterclaim”?
a claim against an opposing party - generally ∆ against π as part of ∆’s answer
What are the two types of counterclaims?
- compulsory
2. permissive
What is a compulsory counterclaim?
arises from the same t/o as π’s claim - you must file or the claim is waived
Lois and Meg, each driving her own car, collide and each is injured. Lois sues Meg. Meg answers and defends the suit. Then Meg files a new case against Lois concerning the same wreck. The case is dismissed. Why?
because Meg’s claim was compulsory counterclaim and Meg failed to assert it in the original action
What is a permissive counterclaim?
claim that does not arise from the same T/O as π’s claim - not required to file in this case
When evaluating a counterclaim, must it also have SMJ?
yes
What is a crossclaim?
a claim against a co-party that must arise from the same t/o as the underlying action
are crossclaims compulsory?
no - you may assert it or bring separately
If you file a crossclaim or counterclaim, can you join additional unrelated claims to it?
yes - you can join additional claims, even if that claim has nothing to do with the others so long as there is SMJ
What are the four most common fact patterns when looking at amended pleadings
- right to amend
- if there’s no right to amend, seek leave of court
- variance - evidence at trial doesn’t match what was pleaded
- amendment after the statute of limitations has run
What is π’s right to amend?
π has the right to amend once within 21 days after ∆ serves her 1st Rule 12 response
What is ∆’s right to amend?
∆ has a right to amend once within 21 days of serving her answer
If there is no right to amend, what must the party do?
seek leave of court - granted if justice so requires
What factors do courts consider when determining if an amendment should be granted when the time has passed to amend?
“justice so requires”
- delay
- prejudice
- futility of amendment
What is a variance?
the evidence at trial does not match what was pleaded - at or after trial, π can move to amend the complaint to conform to the evidence if ∆ doesn’t object to the evidence
When do amended pleadings “relate back” to get around the statute of limitations?
“relate back” if they are concerned with the same conduct, transaction, or occurrence as the original pleadings
When can you change a ∆ after the statute of limitations has run on a claim?
- it concerns the same conduct, transaction, or occurrence as the original
- the new party knew of THIS case within 120 days of its filing; and
- she also knew that, but for a mistake, she would have been named originally
What are supplemental pleadings?
pleadings that set forth things that happened after the pleading was filed
Is there ever a right to file a supplemental pleading?
no - always discretionary
What does Rule 11 require?
when a lawyer or pro se party signs documents, she certifies that to teh best of her knowledge and belief, after reasonable inquiry
- the paper is not for an improper purpose, and
- legal contentions are warranted by law, and
- the factual contentions and denials of factual contentions have evidentiary support
continuing certification
What is the purpose of Rule 11 sanctions?
deter not punish
If the other party violates Rule 11, can the party make a motion for sanctions immediately?
no - serve the motion on the parties but do not file it - party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions
What is the ‘safe harbor’ of rule 11?
a party in violation has safe harbor of 21 days in which to fix the problem and avoid sanctions
What are required disclosures during discovery?
- initial disclosures
- expert witnesses
- pretrial required disclosure - trial evidence, witnesses, ESI, documents, etc.
What are the initial disclosures required under discovery rules?
- identities of persons who have discoverable info that you may use to support your claims or defenses
- documents and things that you may use to support your claims or defenses - you may produce copies or a description of these things
If you know about documents/ ESI /etc. but they are not in your control - are you required to disclose them during initial disclosure?
no - only things in your control
What expert witnesses must be disclosed?
expert witnesses who may be used at trial - not consulting experts
What must a written report disclosing expert witnesses include?
- opinions EW will express
- bases for opinions
- facts used to form opinions
- EW’s qualifications and
- how much EW is being paid
When can a party first request discovery from other parties?
after Rule 26(f) conference
is the deponent at a deposition required to review all her relevant files and notes before being deposed?
no - testifies from present recollection
Can you take a deposition of a party or a nonparty?
yes - but you must subpoena a nonparty to compel attendance
What is a subpoena “duces tecum”?
it requires the deponent to bring requested materials with her
Unless a nonparty agrees, what is the farthest she can be required to travel to have her deposition taken?
100 miles from her residence or place of employment
What are the limits on depositions?
You cannot take more than 10 depositions or depose the same person twice without court approval or stipulation - cannot exceed one day of seven hours unless court orders or parties stipulate
How can depositions be used at trial?
- impeach the deponent
- any purpose if the deponent is an adverse party
- any purpose if the deponent is unavailable for trial, unless absence was procured by the party seeking to introduce the evidence
To whom can you send interrogatories?
parties only
How long does the party have in which to respond with her answers or objections?
30 days from service
Can you respond to an interrogatory saying you do not know the answer?
you must answer from info reasonably available to you - you must look it up
What is the maximum number of interrogatories you can send to a party?
25
When must a person respond to a request to produce a document/thing/etc.?
person must respond in writing within 30 days of service, stating that the material will be produced or asserting objections
Can you make a request to produce of parties and of nonparties?
yes - but subpoena nonparties
