Pretrial Procedures - Complaints

Question 1

How do you initiate a lawsuit?

Answer 1

File a complaint

Question 2

What are the required contents of a complaint?

Answer 2

Rule 8 states you need to have:

• the grounds for SMJ
  
  • FQ, DJ, [Supp. J or RJ]
• statement of the facts
  
  • plausible claims
  • plead w/particularity when fraud
  • can plead inconsistent claims
• a demand for judgment & relief

Question 3

How do you amend a complaint?

Answer 3

• Rule 15 governs
• Ability to amend
  
  • as of right - amend w/o permission
    
    • unilaterally amend w/in 21 days of filing a complaint OR
    • w/in 21 days of the filing of an answer or motion to dismiss
    • can amend an answer w/in 21 days of filing
  • With permission (after 21 days)
    
    • get from opposing pty OR
    • get from cts; they look at
      
      • the reason for it & its time
      • whether it will prejudice the other pty

Question 4

How does the SOL effect amendments to a complaint/answer?

Answer 4

It depends on whether you are:

• Adding a new claim after SOL
  
  • Relatio back rule - it will be deemed filed as of the original filing date of the complaint so long as the new claim arises out of the same ToO as the existing claims
• Adding a new pty after SOL
  
  • It will “related back” to original date only if:
    
    • the pty added knew of the lawsuit ebough time not to be prejudice to defend it AND in no case later than time permitted for service of process
    • the pty should have expected to be named as a D
    • the pty was originally left out b/c of a mistake in identiity

Question 5

What is process?

Answer 5

Process - Rule 4

• something that consists of:
  
  • a copy of the complaint AND
  • a summons
• served at the same time

Question 6

When must process be served and who can serve process?

Answer 6

• served w/i 120 days of filing the complaint
  
  • can ask the ct for more time but depends on the reason
• Served by:
  
  • any person
  • at least 18
  • not a pty to the action

Question 7

How may process be served?

Answer 7

1. Follow what it says in state cts, whether:
   
   • state in where the lawsuit is
   • state where D is going to be served
   • NOTE - so long as it does not violate the Constitution
2. Follow fed rules F.R.C.P. 4
   
   1. Natural Person -
      
      • deliver to the person wheree he is (walk up to) - 21 days
      • deliver to the person/s usual place of abode w/a person of suitable age & discretion who resides there - 21 days
      • serve their registered agent - 21 days to respond
      • Mail process w/a letter requesting D to waive traditional process - 60 days to respond
        
        • if you don’t waive you can be hit w/cost of service
   2. Corporations
      
      • serve on an officer (high ranking member of the corp.)
      • managing agent or general agent
      • any other agent authorized by appointment or law to receive service

Question 8

What is teh relationship between service and PJ? and Constitutional Due Process?

Answer 8

• PJ
  
  • The ct has authority to assert it but has to activate it through service
    
    • however when PJ is done through tag, you are serving & getting PJ at the same time
• Constitutional Due Process
  
  • Notice & oppty to be heard
    
    • Notice is often accomplished through service
      
      • service of process satisfies the notice requirement
  • Notice w/o service
• TEST - Not whether there was service but whether P took steps that were reasonably calculate to inform D of the action against him

Question 9

Do you have do sevice of process for new claims to a lawsuit?

Answer 9

If the new claim is against a new pty you have to have new service of process.

• If it is a pty already involved such as:
  
  • Additional claims added by P
  • D files a counterclai
  • Co-Ds sue each other
  • Third pty dragged in the lawsuit
• you do not have to have service of process everytime