Pleadings Flashcards
Commencement of proceedings
Under Rule 3, a civil action is commenced by filing a complaint with the court clerk. For the purposes of a federal diversity action, state law will apply to decide when the action commenced for the purposes of the statute of limitations. Walker v. Armco Steel Corp., 446 U.S. 740 (1980). Thus, if state law provides that an action is commenced by service of process on a defendant, then the state rule will control for the purposes of diversity jurisdiction.
Motions, hearings, and affidavits
Under Rule 6(c), a written motion and notice of a hearing must be served at least 14 days prior to the hearing, unless (i) the motion can be heard ex parte, (ii) the Rules provide for it, or (iii) the court orders otherwise. An opposing affidavit must be served at least seven days before the hearing, unless otherwise ordered.
Waiver of service
Pursuant to Rule 4(d), a competent individual, corporation, or association that is subject to service has a duty to avoid unnecessary expenses of serving the summons by waiving service. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of the summons. This request is not available if the defendant is a government entity or a minor, or if the defendant is incompetent.
Request for waiver
A plaintiff’s notice and request for waiver of service must be in writing and be addressed to the individual defendant, or, for a corporation, to an officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process.
It must be accompanied by a copy of the complaint, two copies of a waiver form, and a prepaid means for returning the form, and it must give the defendant a reasonable time of at least 30 days after the request was sent (or at least 60days if sent to a foreign defendant) to return the waiver.
Effect of waiver
if a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside the United States.
When service is waived what is the date of service?
If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service. Rule4(d)(4). However, the defendant must still answer the complaint within 60 (or 90, if foreign) days from the date on which the notice was sent.
Failure to waive service
Under Rule 4(d)(2), if a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, then 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.
Proof of service
Under Rule 4(l)(1), 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 make proof of service does not affect the validity of the service.
Injunctions
Rule 65 permits an injunction, which is a form of equitable relief mandating that a defendant perform a specified act or prohibiting a defendant from performing a specified act. An injunction is considered an extraordinary remedy, only to be granted in limited circumstances.
What information should the injunction contain?
Every order granting injunctive relief must state the reasons for its issuance, specifically state its terms, and specify the acts that the defendant is restrained from performing or required to perform. Additionally, to protect the adverse party against harm in the event of an erroneous grant of preliminary relief, the rule expresses a preference that the moving party post an injunction bond
Mandatory injunctions
A mandatory injunction, which is a specific relief, requires a person to engage in an affirmative act that typically changes the status quo.
When the injunction is directed at providing mandatory relief, as opposed to preserving the status quo, the moving party’s burden is particularly heavy.
Prohibitory injunctions
A prohibitory injunction, which is a form of preventive relief, restrains or prohibits a party from engaging in a specified behavior.
Temporary Restraining Orders
A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction.
How long can a TRO last?
This interlocutory injunction 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. Rule 65(b)(2).
Are TRO appealable?
TROs are not generally immediately appealable, unless they have the effect of an injunction, as when the court extends the length of the TRO beyond the time limit specified in the rules.
Do you need to provide notice of the TRO?
A TRO may issue without notice to the adverse party if:
i) The moving party can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and
ii) The movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.
What does the TRO contain?
In addition to being filed with the clerk, the TRO must state the following:
i) The date and time issued;
ii) The irreparable harm suffered by the plaintiff; and
iii) The reasoning behind the ex parte issuance.
Motion to dissolve (TRO)
If the TRO is issued without notice, the adverse party may appear and move to dissolve or modify the TRO, but must give the party who obtained the TRO two days’ notice unless a shorter time is set by the court. Rule 65(b)(4).
Preliminary injunctions
A preliminary injunction is a form of relief issued prior to a full hearing on the merits, but only upon notice to the defendant and a hearing on whether the injunction should issue.
Should an expedited decision on the merits be appropriate, a court may order a trial on the merits to be consolidated with the preliminary injunction hearing. Rule 65(a).
What does a person seeking a preliminary injunction establish?
A plaintiff seeking a preliminary injunction must establish that:
i) He is likely to succeed on the merits;
ii) He is likely to suffer irreparable harm in the absence of relief;
iii) The balance of equities is in his favor; and
iv) The injunction is in the best interests of the public.
Permanent injunction
A permanent injunction is a determination on the merits. Once issued, it continues until dissolved by the court, but any affected person may move for modification or dissolution. The standard for a permanent injunction is essentially the same as for a preliminary injunction except that the plaintiff must show actual success on the merits
Complaint
The complaint is the initial pleading in an action filed by the plaintiff and serves as notice to the opposing party.
What does a complaint need to contain?
Under Rule 8(a), a complaint (or any pleading in which a claim is made) must include:
i) A short and plain statement of the grounds that establish the court’s subject matter jurisdiction;
ii) A short and plain statement of the claim establishing entitlement to relief; and
iii) A demand for judgment for the relief sought by the pleader.
What is a short and plain statement of the claim?
Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief” to “give the defendant fair notice of what [the] plaintiff’s claim is and the grounds upon which it rests.”
Detailed factual allegations are not required, but a party may not merely recite the elements of a cause of action with broad, conclusory statements. Ashcroft v. Iqbal, 556 U.S. 662 (2009), Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A complaint should not be dismissed for an imperfect statement of the legal theory.
