review 8 June

Question 1

conflict of law

Answer 1

When a federal court is hearing a state law cause of action, state SUBSTANTIVE law applies, but federal PROCEDURAL law applies.
Substance: “Bound up with the definition of the rights and obligations of the parties”
v.
Procedure: “manner and means by which a right to recover is enforced”

Question 2

Is the applicable federal rule a Federal Rule? If so, it applies unless it is unconstitutional or the Supreme Court exceeded the Enabling Act. If not →

Answer 2

Either Apply
A. Byrd: Is the state rule “bound up with the definition of the rights and obligations of the parties”? If so, the state rule applies. If not, is the rule outcome-determinative? If not, no need to apply it. Even if so, are there “affirmative countervailing considerations” in favor of the federal rule? If they outweigh the interest in uniformity, apply federal rule. OR
B. Hanna: Would application of the federal rule or practice conflict with the twin goals of discouraging forum-shopping and avoiding inequitable administration of the laws? If not, apply the federal rule.

Question 3

pre answer motion

Answer 3

Rule 12 (b) allows you to raise 7 defenses by motion: (1) lack of SMJ; (2) lack of PJ; (3) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief may be granted; (7) failure to join party under Rule 19.
12(b): These defenses, including lack of PJ, can be included in the answer OR asserted by motion.  If the D does make a motion under this rule, he must make it before filing the answer. 
12(h):  If the D does make a pre-answer motion, he must include 2-5 or he waives that defense.
12(g):  Except for some limited exceptions, the D can only make one Rule 12 motion.

Question 4

answering the complaint

Answer 4

Rule 8(b):
(1) In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it, or lack knowledge or information sufficient to form a belief about the truth of an allegation – effect of a denial
Effect of failure to deny –admitted.

Question 5

rule 7

Answer 5

(a)  Pleadings Allowed:
Complaint
Answer to a complaint
Answer to a counterclaim designated as such
Answer to a crossclaim
Third-party complaint
Answer to a third-party complaint
If the court orders one, a reply to an answer

Question 6

time limits for responsive pleading

Answer 6

Rule 12(a): Unless another time is specified:
A Defendant must serve an answer
Within 21 days after being served with the summons and complaint; or
If the def has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, (or within 90 days if the Def is foreign)
(B) and (C) 21 days to serve answer to counterclaim, crossclaim, or reply

Question 7

affirmative defenses

Answer 7

See rule 8(c): These defenses must be asserted in the answer (or amended answer) or they are waived.

Question 8

rule 15 amended and supplemental pleadings

Answer 8

Amendments Before Trial.
(1) Amending as a matter of course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

Question 9

(a) Amendments Before Trial cont’d.

Answer 9

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent OR the court’s leave. The court should freely give leave when justice so requires.
(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading OR within 14 days after service of the amended pleading, whichever is later.