Pleading Flashcards
When must service of process occur in an original filing?
The defendant(s) must be served within 90 days after filing of complaint.
How is “reasonable notice” (or Due Process) defined for service of process?
Due Process is met if the notice is reasonably calcuated under all circumstances to apprise interested parties of the pendancy of the action and to notify them that they are afforded the right to present objections.
In other words, Notice & Opportunity to be Heard!
What is the bulge provision and when does it apply?
The bulge provision allows for service of process up to 100 miles from the court (even when state law doesn’t). It only applies to 3rd party D (impleader) or compulsory joinder (required party)
What methods of service are permissible for an individual under FRCP?
An individual may be served personally OR left at their usual place of abode with a person of suitable age/discretion who resides there, OR by delivery to the D’s agent.
What methods of service are permissible for an corporation under FRCP?
Service may be made to an officer or an agent
OR
by following state law.
What are the requirements for waiver of service and how do they affect timelines in the case?
A waiver of service must be in writing and addressed to an individual D (or an officer/agent of a corporation), and must give D a reasonable time of at least 30 days after the requst was sent to return the waiver.
If the D agrees to waive service, it will extend the D’s time to serve an answer from 21 days (after service of process) to 60 days (after waiver request SENT; 90 if foreign).
What is the purpose of a TRO, how may it be granted and how long is it valid?
A TRO preserves the status quo until an opportunity for a full hearing. It may be issued without notice to OP if immediate and irreparable injury will result AND movant’s attorney certifies efforts made to give notice and the reason why notice should not be required.
A TRO is effective for a limited time, typically no longer than 14 days unless good cause exists or adversary consents to extending it.
A TRO is NOT immediately appealable.
When is a prelimary injunction issued and what standard is the court using to determine whether to issue it?
A preliminary injunction is issued prior to a full hearing on the merits and upon notice to the D. A court may issue it to a P if: (1) P is likely to succeed on the merits, (2) P is likely to suffer irreparable harm in the absence of relieve, (3) the balance of equities is in P’s favor, and (4) issuing the injunction is in the public interest.
What stastandard is the court using to determine whether to issue a permanent injunction and how long is it in effect?
The court evaluates the same standards as with a preliminary injunction, but the plaintiff must show actual success on the merits.
A permanent injunction continues until it is dissolvd by the court. Any affected person may move for modification or dissolution of the permanent injunction.
What is required in a notice pleading and how did recent cases Twomby & Iqbal effect the rules for a notice pleading?
A notice pleading should include a short and plain statement of the court’s SMJ, a short and plain statement showing the P’s claim entitles them to relief, and a **demand for judgment **for relief sought.
Twombly/Iqbal are two more recent cases which essentially tightened the reigns on the standards for a notice pleading by requiring Ps to expand more fully on the allegations supporting their claim. The court said that **unconvincing and implausible allegations with no factual support **will lead the court to dismiss the suit. This ruling was based on the court’s desire to reduct overbroad and overly burdensome discovery based a general claim for relief.
When does the court require a special pleading instead of just notice pleading and what does it require.
If a P is alledging a claim of fraud or mistake the claim must be alleged with particularity, specificity, and detail.
A claim for special damages must also be specially pleaded.
In what circumstances may be Motion to Dismiss be granted?
A motion to dismiss can be granted for:
1. Lack of SMJ, which can be raised at any time, even through appeal.
2. Lack of PJ, improper venue or insufficent service (all of these must be raised either in a pre-answer motion or in the D’s answer; if not, they will be waived)
3. Failure to state a claim upon which relief can be granted (can be raised at any time in any pleading, motion for judgment or at trial)
4. Under Rule 12(b)(6), a D may submit a MTD for a claim which fails to assert a legal theory of relief congnizable at law or allege facts sufficient to support a cognizable calim. For this motion, the court will consider all well-pleaded facts as true, resolves doubts in favor of P, and views pleading in light most favorable to P in order to make it’s decision on granting the motion.
What is a motion for judgment on the pleadings?
A motion for judgment on the pleadings is generally submitted after the D’s answer is filed. This allows a court to dispose of a case when material facts are not in dispute and jugment on the merits can be achieved based on the content of the pleadings.
What are the general rules and requirements
for a D’s answer?
The D’s answer must admit or deny P’s allegations, or plead lack of sufficient knowledge after reasonable investigation. If the defendant wants to raise any affirmative defenses, he must do that in his initial answer or it is waived.
