Notice-- Part II of Pretrial Procedures

Question 1

Notice

Answer 1

A defendant must be properly notified of a pending action by a reasonable method and must be given an opportunity to be heard.

Question 2

WHATis Notice?

Answer 2

Service of Process means to provide a D with a NOTICE of pending action by delivery to D of 3 THINGS:

1) a Summons,
2) a Copy of the Complaint, AND
3) Civil Case Cover sheet.

Question 3

WHEN does Notice need to be served?

Answer 3

Timing of Notice: Service must be made WITHIN 90 DAYS AFTER the complaint is filed.

Question 4

Who can serve Notice? (Method of Service)

Answer 4

Service must be made by a non-party who is at least 18 years old.

Question 5

How can Notice be served? (Types of service)

Answer 5

SPASM; State auth. = following state law for service in state where dist ct is located or serv is made. Personal service: personal delivery. Agent = serving D’s auth. agent. Sub service: left at D’s usual place of abode with some1 of suitable age and discretion (14 y.o) who resides there. Mailed waiver: if D agrees to waive serv – D gets 60 days to respond.

Question 6

What is Personal Service?

Answer 6

An adequate type of service and occurs when the notice is personally delivered to a defendant.

Question 7

When is Substituted Service adequate?

Answer 7

Service of process can be

1) left at the defendant’s usual place of abode and
2) served upon someone of suitable age and discretion
3) who resides there; OR
4) served to defendant authorized agent (agent for service of process); OR
5) served by method permitted by state law.

Question 8

When is Substituted Service permitted by state law.

Answer 8

Per State Law: Serve summons per state law applicable in state Federal Court sits or in the state where service is effectuated.

Question 9

When can Defendant Waive personal Service (Waiver of Service)

Answer 9

If a D agrees to waive personal service, then D gets 60 days to respond to the complaint.

Question 10

Type of service on Parties outside of State

Answer 10

Following state law for serving summons in the state where the district court is located of where service is made.

Question 11

Service on Foreign Defendants

Answer 11

Service can be done as the court directs, or in accordance with the laws of the foreign jdx, or in accordance with the rules of an international treaties.

Question 12

Who has Immunity from Service of Process?

Answer 12

Individuals who enter a state to appear in another action are immune from service of process. Additionally, if a party was introduced by fraud or deceit, the service is invalid and the court does not acquire PJ.

Question 13

Response–Rule 12 requirements

Answer 13

Rule 12 requires a defendant to respond WITHIN 21 days AFTER SERVICE of process (or WITHIN 60 days IF SERVICE IS WAIVED) by either a

1) MOTION OR
2) ANSWER

Question 14

The Defendant can RESPOND BY

Answer 14

The Defendant can RESPOND BY:

1) Do nothing
2) Answer
3) Motion to Dismiss

Question 15

The Defendant can RESPOND BY:

1) Do nothing

Answer 15

When a D does nothing in response to Notice, it results in a default judgement in P’s favor.

Question 16

The Defendant can RESPOND BY:

2) Answer

Answer 16

An answer is the D’s response to the complaint.

1) The D must respond to allegations
2) the D must assert any affirmative defenses
3) D may raise inconsistancy
4) Counterclaim
5) Crossclaim

Question 17

The Defendant can RESPOND to allegations in an Answer by

Answer 17

The defendant must respond to the allegations by:
1) denying them,
2) admitting them, OR
3) stating he lacks sufficient information to do either
FAILURE TO DENY can operate as an admission!!

Question 18

The Defendant must RESPOND in an Answer by asserting

Answer 18

The D must assert any AFFIRMATIVE DEFENSES in the Answer.

Question 19

The Defendant RESPONDs in an Answer by raising

Answer 19

D may raise Inconsistent and multiple Objections and Defenses in the answer so long each is raised in GOOD FAITH

Question 20

The Defendant is permitted to RESPOND in an Answer by alleging against the P a…

Answer 20

A counterclaim permits D to allege a claim against P as part of the Response.

Question 21

The Defendant is permitted to RESPOND in an Answer by alleging against another D

Answer 21

A crossclaim permits D to allege a claim against another D as part of the Response.

Question 22

Move to Dismiss

Answer 22

Move to Dismiss is a formal request (on various grounds) for court order of dismissal.

Question 23

Grounds for Motion to Dismiss

Answer 23

A D may Move to Dismiss for:

1) Lack of SM
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
7) Failure to join a party under rule 19

Question 24

What 4 Grounds for Motion to Dismiss will be waived if they are not brought at D’s first time in court or in First responsive pleading

Answer 24

• Lack of PJ
• Improper Venue
• Insufficient process
• Insufficient service of Process

Question 25

What happens If D files a Rule 12 motion and the court subsequently denies it?

Answer 25

If D files a Rule 12 motion and the court subsequently denies it, D’s answer is due within 14 days of the Court’s order UNLESS the court provides otherwise.