Rules and Statutes

Question 1

What are the main points from Rule 4 Summons?

Answer 1

Summons must be served with a copy of the compliant
by a person at least 18 and not a party
Waiver of service must include a copy of the complaint, 2 copies of the waiver, and a prepaid means for returning the form
Must give D 30 days after request was sent or 60 if D outside of Us to return waive
Failure to waive incurs the D with expenses for service, and reasonable expenses to collect those expenses
If waived, does not need to answer until after 60 days after request was sent (90 if foreign).
Only waives service, nothing else
Serving summons or waiver of service establishes PJ over D if they are subject to general jurisdiction there, or if served within
100 mile bulge rule of the fed court

Question 2

What are the main points of Rule 5? Serving and Filing Pleadings and Other Papers

Answer 2

These papers must be served:
an order stating that service is required
a pleading filed after the original complaint
discovery paper
written motion
written notice

Question 3

Rule 5.1 Constitutional Challenge to statute - notice, certification and intervention deals with?

Answer 3

A party that files a pleading questioning the constitutionality must promptly: file a notice of a constitutional question stating the question if it deals with a Federal Statue or a State statute

Question 4

Rule 6 Computing and Extending Time: Time for Motion Paper bullet points?

Answer 4

The first day is day 0
Include last day, but if it falls on Sat Sun or Holiday then go to next day

Question 5

Rule 7 Pleadings allowed; Form of Motions and other papers. Major Points?

Answer 5

Only these pleading are allowed: A complaint, an answer to a complaint, counterclaim, or crossclaim, a third-party complaint, an answer to a third party complaint, and if court orders, a reply to an answer

Request for court order must be made by a motion, must:
Be in writing
State the particularities (must be plausible Twiqbal)
state the relief sought

Question 6

Rule 8 General Rules of Pleading. Major Points?

Answer 6

Claim for Relief must have
1. A short and playing statement of the courts jurisdiction
2. Short and plain statement of the claim showing the pleader is entitled to relief
3. A demand for the relief sought.

Question 7

Rule 8, what are defenses to a pleading?

Answer 7

In response to a pleading a party must:
1. state in short and plain terms its defenses to each claim asserted against it
2. admit or deny allegations asserted against it by an opposing party.

A part can:
1. Admit
2. Deny – Failure to deny constitutes an admission. Only any allegation except for damages. USE THE WORD DENY.
3. Or IDK 8(b)5

Question 8

Rule 8(c)1 lists affirmative defenses, what are those?

Answer 8

Affirmative defenses (different than denials). Raising a new fact.
You must plead affirmative defenses, or they are waived.

Question 9

Rule 9 Pleading special matters, what’s important here?

Answer 9

Rule 9 (b) and (g) talk about special circumstances that have heightened pleading requirements. You give details and particulars if you allege:
1. Fraud
2. Mistake
3. Special Damages

Question 10

Rule 10 Forms of Pleadings, what should we know about this?

Answer 10

Each form must have a caption with courts name, title and file number.
A party must sate its claims or defenses in numbered paragraphs. (for organization purposes, easier to relate to numbers. Think measures numbers in sheets of music)

Question 11

Rule 11 Signing Pleads, Motions and other papers. What’s this for?

Answer 11

Every pleading, motion must be signed by at least on attorney, with address, email and telephone number
This certifies that the attorney has to his best of his knowledge made a reasonable inquiry that the pleading is:
1. Not for improper purposes (like harassment)
2. The claims are warranted by existing law, or a non frivolous argument to establish new law
3. The facts have evidentiary support
4. The denials of factual contentions are warranted

Question 12

Rule 11 Sanctions, what are these about?

Answer 12

3 Procedural points:
1. This certification is effective every time you advocate a position in that document. It is a continuing certification.
2. Sanctions for violations of Rule 11 are discretionary (not required). You can make a motion for sanctions, but its up to the court. The goal of sanctions are not to punish, but to deter
3. A motion for sanctions cannot be filed right away. A 21 day safe harbor must be given for the other party to make corrections

Question 13

Rule 12 Defenses and Objections; When and how presented.

Answer 13

You must respond within 21 days of service of process, or risk default
If defendant was service of process under Rule 4(d), then she has 60 days from the date the P mailed the waiver form. Must respond by motion or answer.
12(b) What are the defenses. There are 7….
1. Lack of SMJ (never waivable!)
2. Lack of PJ (waivable if not 1st )
3. Improper venue (waivable if not 1st)
4. Insufficient process (waivable if not 1st)
5. Insufficient service of process (waivable if not 1st)
6. Failure to state a claim (waivable till trial)
7. Failure to join a party under Rule 19 (waivable till trial)

LLIIIFF yeeeff

12 (g) and (h) give tell us 2, 3, 4, and 5 must be put in FIRST response
6 and 7 are waivable till trial
1 SMJ is NEVER waivable, you can bring it up first time on appeal

Question 14

What are some other important Rule 12 rules?

Answer 14

12(e) Motion for a more definite statement
(f) Motion to strike. If there are scandalous or irrelevant allegations.
Motions are not pleadings.
Answers are pleadings

A motion is a request for a court order. 4 possible documents
Elements of the motion:
1. Motion itself “D moves the court to dismiss bc of lack of PJ”
2. Notice for submission (at least 15 days after)
3. Affadavits
4. Suggestions in support of the motion
- Local rule in LA is you must include suggestions.
5. Optional: Order for judge to sign

Question 15

Rule 65, oh you know about this one dont you…

Answer 15

The court may issue a preliminary injunction only on notice to the adverse party
TRO a court may issue a TRO w/o written or oral notice if: specific facts in the affadavit clearly show that an immediate and irreparable injury will result before the adverse party can be heard.
The order expires 14 days after time of entry.

Question 16

§1331 Federal Question, what does that mean?

Answer 16

The district courts shall have original jurisdiction of all civil actions arising under all federal questions (constitution, laws, treaties of USA)

Question 17

§1332 Diversity of Citizenship, what’s to know here?

Answer 17

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, in controversies between:
1. Citizens of different states
2. Citizens vs aliens
3. Corporations are at home where they were incorporated or where there PPB is

Question 18

§1367 Supplemental Jurisdiction, what does that mean?

Answer 18

the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy
The district courts may decline to exercise supplemental jurisdiction over a claim under subsection if:
1. The claim raises a novel or complex issue of State law
2. The claim substantially predominates over the claim or claims over which the district court has original jurisdiction
3. The district court has dismissed all claims over which it has original jurisdiction, or
4. Other compelling reasons

Question 19

§1391 Venue generally, what should we know about venue?

Answer 19

What’s the diff between SMJ + Venue? Venue tells us which federal court she can use.
Basic Rules
§1391(b)(1) and (2) give two choice: (ONLY APPLY WHEN P INITIALLY FILED IN FED COURT)(not in cases that were removed)
1. You may lay venue in any district where all Ds reside. All of the Ds must reside in that district for that to work.
*If all the Ds reside in the forum state, then we may lay venue where one of them resides. For a person residence is where you are domiciled. For corporations it is where it is subject to PJ, could reside in several district.
2. P may lay venue in any district where a substantial part of the claim arose.
(b)(3) is a head fake, it almost never applies. Only applies when there is no district anywhere in the USA where (b)(1) or (b)(2) don’t apply. This is called a fallback venue. This only happens if everything is overseas.

Question 20

§1404 Change of venue, how do you do that?

Answer 20

1404(a) allows that you may transfer to any venue (even improper) if ALL the parties agree, and the court thinks it’s proper.
1404(a) the transferor is a proper venue, that court my transfer to another district based on convenience of the parties and witnesses, and in the interest of justice. The other court may be closer to the “center of gravity” of the case. To determine center of gravity, courts will weigh public and private factors.
Forum Selection Causes are very important factor in ruling on a 1404 transfer (Atlantic Marine)

Question 21

§1406

Answer 21

1406(a) applies when the transferor is an improper venue. Gives the court a choice.
It may transfer in the interest of justice OR it may dismiss.

Question 22

Bonus, what is Forum Non Conveniens?

Answer 22

This is where a court dismisses a case bc there is a court that is better suited. Dismiss because transfer is impossible, bc the proper court is in a different judicially system. This happens often when center of gravity is in a foreign country. Piper . Reyno foot 6 of the public and private factors. The fact that the foreign court doesn’t allow damages, jury trial etc, does not make foreign court inadequate.
Note: A court may ask for a waiver of certain defenses in a forum non-convenienes dismissal.

Question 23

Rule 15 Amended and Supplemental Pleadings

Answer 23

Three possibilities in an amendment hypo. Rules 15(a)(b)(c)
1. Does 15(a) apply? Three rules
- P has a right to amend within 21 days after D serves her first Rule 12 response
- D has a right to amend once with 21 after serving her answer.
- If these times are gone, you just ask the court for permission (leave to amend)
2. Rule 15(b), Variance, the evidence at trial does not match what was plead. Can only come up at trial.
- If party does not object, then we act like it was pleaded, or even amend the original complain
- Or object on the basis of variance under 15(b)1
3. Rule 15(c) Amendment after the statute of limitations have run. Two ways this can come up.
- Amend to add a claim 15(c)1(b)
This only makes senses if the amendment “RELATES BACK” to the original complaint.
5(c)1(b) if amendment arises from the same conduct, transaction or occurrence as the original complain, then we treat it as if it was applied before the statute of limitations
- Amend to change a defendant. 15(c)1(c)
Will only work, when you are changing the D if we sued the wrong D first, but the right D knew about it. The only fact pattern that will satisfy this.

Supplemental pleadings – Rule 15(d) Where you want to add something that happened after the case was filed. You always must ask courts for permission.

Question 24

Rule 12d summary judgment, explain

Answer 24

IF on motion of 12(b)(6) or 12(c) matters outside of pleading are present, the motion must be treated as one for summary judgment. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion

Question 25

Declaratory Judgment, what is this and why is it included this semester? §2201-2202

Answer 25

These statutes empowers federal district courts to hear certain cases in which a potential defendant seeks not a coercive remedy but a declaration of rights.

Question 26

§1441 Removal of civil actions, this sections authorizes the removal of state court actions when…

Answer 26

§1441(a) only authorizes removal of state court actions “of which the district courts of the US have original jurisdiction”. If the P could not have chosen to bring the action in federal court initially, the D cannot remove it

Question 27

§1441, if a D is sued in his home state, may he remove on the basis of diversity?

Answer 27

(b)(2) Provides that a diversity case may not be removed if “any of the parties in interest properly joined and served as defendants is a citizen of the state in which the action is brought.” If D is sued in his home state, he may not remove on the basis of diversity.

Question 28

§1441(f) Derivative removal jurisdiction means what?

Answer 28

the federal court is not precluded from hearing the case simply because the state court lacked jurisdiction over it. This does not change the requirement that the case be within federal jurisdiction to require it

Question 29

§1441 cont. Can you remove from a state court, to a court of another state?

Answer 29

No.
You cannot remove to another state court, or state court in different state, or another federal court in another state of district There is only one court that can host a removal action: The federal district court “for the district and division embracing the place where the action is pending [in the state court]”

Question 30

§1446 What is the procedural for removal?

Answer 30

• D must file notice of removal in the appropriate federal district court
• The notice must be filed within 30 days of receiving the P’s pleading in the state suit
  If the P disagrees with the removal may move the federal court to send it back to state court. The remand motion must be made with in 30 days or the objection is waived. A motion to remand on SMJ is never waived.