Pleadings and Parties

Question 1

How is an action “commenced” for limitations purposes?

Answer 1

State law determines how and when an action is commenced for limitations purposes.

Question 2

Who can make service?

Answer 2

Any non-party over 18 years of age.

Question 3

How long does the plaintiff have to effect service?

Answer 3

90 days except on showing of good cause.

Question 4

How do you serve an individual?

Answer 4

1. Personal service
2. Leaving at usual place of abode with suitable person.
3. Service an agent appointed by defendant.

Question 5

How do you serve a corporation or association?

Answer 5

1.By serving an officer, managing agent or general agent.
2. Serving a registered agent.

Question 6

How do you serve the US government?

Answer 6

1. Serve the US Attorney for that district
2. Serve the US Attorney General

Question 7

Can a defendant waive service?

Answer 7

Yes. Plaintiff must send request to Defendant and Defendant must return waiver form within 30 days. Defendant then has 60 days to answer instead of 21.

Question 8

What must be shown to get a TRO without notice?

Answer 8

1. Immediate and irreparable harm
2. Any efforts to give notice and reason notice should not be required.

Question 9

What must a TRO contain?

Answer 9

1 Date and time of issue
2. The irreparable harm suffered
3. Reason to justify ex parte issuance.

Question 10

What must be established to obtain a preliminary injunction?

Answer 10

1. Likely to succeed on the merits.
2. Irreparable harm without injunction
3. Balance of equities in his favor
4. Injunction in best interest of the public.

Question 11

What are the general requirements for a Complaint.

Answer 11

1. Short and plain statement of grounds for SMJ.
2. Short and plain statement of claim
3. Demand for judgment for the relief sought.

Question 12

What are the Rule 12 motions to dismiss and when must they be filed?

Answer 12

1. Lack of SMJ
2. Lack of personal jurisdiction
3. Improper venue
4. Insufficient process
5. Insufficient service
6. Failure to state a claim
7. Failure to join a Rule 19 necessary party.

All Rule 12 motions must be filed before an answer except 6 and 7. All possible defenses must be presented in that motion or they are waived. 6 and 7 can be raised at any time.

Question 13

What is the process for determining a 12(b)(6) motion?

Answer 13

1. Identify and reject legal conclusions not supported by factual allegations.
2. Assuming pleaded facts to be true, determine if the legal conclusions are supported by those facts.

If the motion is granted, Plaintiff is typically given time to amend.

Question 14

What must be contained in an Answer?

Answer 14

1. Admit or deny each allegation in the Complaint.
2. Any affirmative defenses.
3. Counterclaims.

Question 15

How long does a party have to file an Answer?

Answer 15

21 days unless a Rule 12 motion is filed. 14 days after Rule 12 motion is ruled upon. 60 days if party agreed to waive service.

Question 16

How long can a plaintiff amend a Complaint by right?

Answer 16

Within 21 days of receiving the defendant’s answer or Rule 12 motion.

Question 17

What is the standard for allowing amendment of pleadings?

Answer 17

Court should freely grant unless undue prejudice would occur.

Question 18

What is covered by Rule 11?

Answer 18

Filing in good faith and sanctions.

Question 19

What is the standard for permissive joinder?

Answer 19

For both plaintiffs and defendants, the relief sought arises out of the same transaction or occurence. New parties must meet all the requirements for SMJ and diversity jurisdiction.

Question 20

What are the requirements for compulsory joinder under Rule 19?

Answer 20

1. Complete relief to exist parties cannot be obtained OR
2. Disposition might impair parties ability to protect its interests OR
3. Absence might leave existing parties with multiple/inconsistent obligations.

Question 21

If an necessary party cannot be joined because of jurisdiction or venue issue, how does the court proceed?

Answer 21

Court can proceed without party or dismiss based upon:
1. Prejudice to the remaining parties
2. Adequacy of the judgment
3. Adequate remedy elsewhere is dismissed.

Question 22

When is a counterclaim compulsory?

Answer 22

1. Arises out of the same transaction or occurence
2. Does not require additional parties

Question 23

What are the requirements for a permissive counterclaim?

Answer 23

Because it is permissive and not compulsory, it must independently meet all SMJ and venue requirements.

Question 24

What are the requirements for cross claims?

Answer 24

Cross claims are never mandatory so they are treat just like permissive counterclaims. They must meet all SMJ and venue requirements.