Pleadings

Question 1

When is a civil action commenced?

Answer 1

A civil action is commenced by filing a complaint with the court clerk. However, for a diversity action, state law will apply to decide when the action commenced for the purposes of the statute of limitations.

Question 2

Under the FRCP, how is time computed?

Answer 2

A period of time excludes the day of the triggering event, but includes weekends and holidays. If the final day is on a weekend or holiday, the period is extended to include the next workday.

Question 3

Who is responsible for service of a complaint?

Answer 3

The plaintiff is responsible for serving the summons and complaint upon the defendant. Service may be made by any nonparty who is at least 18 years old.

Question 4

When must a summons and complaint be served? What happens if it isn’t?

Answer 4

The plaintiff must serve the summons and complaint within 90 days after filing the complaint. If they show “good cause,” then the court must extend the time for service for an appropriate period. If they don’t show “good cause,” the court must dismiss the action without prejudice or order that service be made within a specified time.

Question 5

How can service be made on an individual in the United States?

Answer 5

1) Personally serving the summons and complaint on the defendant
2) Leaving the summons and complaint at the defendant’s usual place of abode with a person of suitable age and discretion who resides there
3) Delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service

Question 6

How can service be made on an individual outside of the United States?

Answer 6

Service may be effected in any manner, internationally agreed upon. If no international agreement exists, then service may be effected:
• by any method permitted by the law of the foreign country
• by personal service
• by using any form of mail that the clerk sends and that requires a signed receipt

Question 7

How can service be made on a corporation in the United States?

Answer 7

Service on a corporation or an unincorporated association (e.g., a partnership) in the United States may be effected by delivering the summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process.

Question 8

How can service be made on a corporation outside of United States?

Answer 8

Service on corporations and associations outside the United States may be made using any methods available for service on an individual outside the United States, except personal delivery.

Question 9

How can service be made on the United States?

Answer 9

Deliver/send a copy of the summons and complaint via registered/certified mail to:

1) the U.S. attorney for the district where the action is brought
2) the U.S. Attorney General
3) the agency or officer (If the action challenges an order of a nonparty agency or officer of the United States)

Question 10

What is a request for waiver of service? What must it include and how much time does a defendant have to respond?

Answer 10

A plaintiff’s notice and request for waiver of service must be in writing and be addressed to the individual defendant. It must be accompanied by:

• a copy of the complaint
• two copies of a waiver form
• a prepaid means for returning the form

It must give the defendant a reasonable time of at least 30 days after the request was sent (or at least 60 days if sent to a foreign defendant) to return the waiver.

Question 11

What are the benefits of waiving service?

Answer 11

If a defendant timely returns a waiver of service before being served with process, then the defendant does gets extra time to serve an answer to a complaint:

• 60 days after the request was sent
• 90 days after it was sent to a defendant outside the United States

Typically this period would be 21 days.

Question 12

What is the date of service when service is waived?

Answer 12

The date on which the plaintiff files the waiver form with the court will be deemed the date of service.

Question 13

What happens if someone fails to waive service (without “good cause”)?

Answer 13

The court must impose on the defendant the expenses that are incurred in making service and the reasonable expenses, including attorney’s fees, of any motion required to collect such service expenses.

Question 14

What proof of service is necessary?

Answer 14

If formal service is not waived, then the process server must submit proof of service to the court. Generally, this will be by an affidavit of the process server. Failure to have proof does not affect validity of service.

Question 15

What is a Temporary Restraining Order?

Answer 15

A TRO preserves the status quo of the parties until there can be a full hearing on the application for a preliminary injunction.

Question 16

How long can a TRO last? Can it be appealed?

Answer 16

A TRO may remain in effect only a limited number of days, to be set by the court, and no longer than 14 days unless good cause exists or the adversary consents. TROs are not generally immediately appealable, unless they have the effect of an injunction.

Question 17

Is notice of a TRO required?

Answer 17

A TRO may issue without notice if the moving party can establish that an irreparable injury would result.

Question 18

What must a plaintiff show in order to get a preliminary injunction?

Answer 18

1) He is likely to succeed on the merits;
2) He is likely to suffer irreparable harm in the absence of relief.
3) The balance of equities is in his favor.
4) The injunction is in the best interests of the public.

Question 19

What is a complaint?

Answer 19

The complaint is the initial pleading in an action filed by the plaintiff and serves as notice to the opposing party.

Question 20

What must a complaint include?

Answer 20

1) A short and plain statement of the grounds that establish the court’s subject matter jurisdiction.
2) A short and plain statement of the claim establishing entitlement to relief.
3) A demand for judgment for the relief sought by the pleader.

Question 21

After filing the complaint, how much time does one have to serve the defendant?

Answer 21

90 days

Question 22

When is a party required to plead with greater detail?

Answer 22

When alleging

• Fraud or mistake
• Special damages

Question 23

How long does a defendant have to respond to a complaint?

Answer 23

A defendant must respond to a complaint either by an answer or by a pre-answer motion within 21 days of service of process (unless they have waived process).

Question 24

What defenses can be raised in a 12(b) motion?

Answer 24

i) Lack of subject matter jurisdiction;
ii) Lack of personal jurisdiction;
iii) Improper venue;
iv) Insufficient process;
v) Insufficient service of process;
vi) Failure to state a claim upon which relief can be granted; and
vii) Failure to join a necessary or indispensable party under Rule 19.

Question 25

What defenses must be raised in a 12(b) motion, lest they be waived?

Answer 25

1) Lack of personal jurisdiction;
2) Improper venue;
3) Insufficient process;
4) Insufficient service of process.

Question 26

What defenses can be raised in a 12(b) motion, but won’t be waived if you don’t?

Answer 26

1) Subject matter jurisdiction
2) Failure to state a claim upon which relief can be granted
3) Failure to join a necessary or indispensable party under Rule 19

Question 27

How must a court treat a 12(b)(6) motion?

Answer 27

In deciding a motion under Rule12(b)(6), courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the pleading in the light most favorable to the plaintiff.

Question 28

What may a court consider in ruling on a 12(b)(6) motion?

Answer 28

In ruling on a motion to dismiss under Rule 12(b)(6), the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice.

Question 29

Can a court consider an affadavit when ruling on a 12(b)(6) motion?

Answer 29

No. If they do, then the motion must be treated as a motion for summary judgment and all parties must be given an opportunity to present all material information for the court’s consideration.

Question 30

What happens if a 12(b)(6) motion is granted?

Answer 30

If the claim is dismissed, then the plaintiff may generally amend the pleading and continue the action. If the plaintiff does not wish to do so, then a judgment will be entered, and the plaintiff can appeal.

Question 31

What happens if a 12(b)(6) motion is dismissed?

Answer 31

If the defendant’s motion to dismiss is denied, then the defendant may either answer the claim or allow a default judgment to be entered and then appeal.

Question 32

What is a Motion to Strike?

Answer 32

A court, upon motion or upon its own initiative, may order that material be stricken if a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material.

Question 33

How long does one have to file a Motion to Strike?

Answer 33

A party must make a motion to strike within 21 days after service of the pleading.

Question 34

When can someone amend a motion?

Answer 34

Courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion.