Service of Process and Pleadings

Question 1

Service of Process

Answer 1

Must give notice to Defendant:

1. Summons (formal Court notice of suit and time for response)
2. Copy of Complaint

• Must serve within 120 days of filing case (or it will be dismissed without prejudice)
• May be served by anyone over 18
• May be served personally, substituted service, on agent, by mail

Question 2

Crossclaim

Answer 2

This is a claim against a CO-PARTY
Rule 13(g):
- MUST ARISE FROM SAME T/O
- THESE ARE NEVER COMPULSORY

Allows a party to assert a claim in a pending case against a co-party, but only if the claim arises from the same transaction or occurrence as the underlying dispute.

*SMJ is required (BUT COULD ALSO GET IN WITH SUPPLEMENTAL JURISDICTION)

Question 3

Federal rule that applies to pleadings?

Answer 3

Pleadings - Documents setting forth claims and defenses
Rule 11 - Requires attorney to sign all papers (except discovery documents) to acknowledge:
1. the paper is not for an improper purpose;
2. legal contentions are warranted by law; and
3. factual contentions and denials of factual contentions have evidentiary support

• Discretionary sanctions meant to deter (CANNOT BE FILED UNTIL AFTER 21 DAYS - UNLESS SUA SPONTE)
• This is a “continuing certification,” which means you re-certify these 3 things every time you do something in relation to those pleadings.

Question 4

Complaint

Answer 4

- Filing commences an action
Requirements: 
1. Statement of jurisdiction; 
2. Short and plain statement of the claim, showing entitled to relief; and 
3. Demand for relief sought

*YOU MUST PLEAD FACTS SUPPORTING A PLAUSIBLE CLAIM!! (not just possible, but plausible!)
Even more detail needed for: fraud, mistake, and special damages.

Question 5

Answer

Answer 5

It is a pleading and includes: (Serve within 21 days of service)
1. Response to Allegations -
Admit, Deny (failure to deny is admission), state that you lack sufficient info to admit/deny

2. Raise affirmative defenses - must plead, otherwise you waive: SOL, Statute of Frauds, Res Judicata, Self-Defense

Question 6

Rule Requiring Defendant’s Response

Answer 6

Rule 12 - Requires response by 1. motion, 2. answer within 21 days of service of process.

12(b)

1. Lack of SMJ
2. Lack of PJ
3. Improper Venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim
7. Failure to join indispensable party

*These can be raised by EITHER motion or answer
2, 3, 4, and 5 ARE WAIVABLE - must be in FIRST motion/answer!

Question 7

Types of Pleadings

Answer 7

Serve the function of giving notice to the opposing parties

1. Complaint
2. Pre-Answer Motions (12(b))
3. Answer
4. Inconsistent Claims/Defenses
5. Special Pleadings
6. Reply
7. Amendment/Supplemental Pleadings
8. Rule 11

Question 8

Amending Pleadings

Answer 8

Right to Amend:

1. Plaintiff has right to amend ONCE within 21 days after Defense serves 1st rule 12 response
2. Defendant has right to amend ONCE within 21 days of serving answer

No Right to Amend:
1. Seek leave of court, it will be granted IF “justice so requires” FACTORS: delay, prejudice, or futility amendment

Variance:
Where the evidence at trial doesn’t match what was pleaded

Amendment AFTER SOL Runs:
Amended pleadings “relate back” if they concern the same conduct, T/O as occurrence.

Question 9

Required DIsclosures

Answer 9

Must be produced even if unasked. Initial Disclosures: within 14 days of Rule 26(b) conference you must identify:

1. Persons,
2. Documents or ESI “likely to have discoverable information that the disclosing party may use to support its claims or defenses,”
3. Computation of damages and insurance for any judgment.
4. Experts
5. Copies of relevant insurance agreements; and
6. The contact information for all parties and witnesses.

Question 10

Depositions

Answer 10

• Can be oral/written (if written - read by court reporter)
• Can depose nonparties or parties - Must subpoena nonparties because they’re not compelled to attend!
• Can’t take more than 10 or depose same person twice without court approval (can’t be more than 7 hours)
• Unless agreed to, can’t compel party to travel more than 100 miles

Question 11

Interrogatories

Answer 11

COMES BEFORE DEPOSITION!!!

• Questions produced in writing to ANOTHER PARTY to be answered in writing under oath!
• Must respond within 30 days of receipt by objection OR answer
• Can’t serve more than 25 without court approval

Question 12

Request to produce

Answer 12

Requests to another party (or non-party by subpoenas) to make available for review and copying various documents or things, including ESI

• Must respond within 30 days of service

Question 13

Physical/Mental Exam

Answer 13

Only available through court order on showing that party’s health is in actual controversy and “good cause.”

Question 14

Scope of Discovery

Answer 14

SCOPE: Anything relevant ("reasonably calculated to lead to the discovery of admissible evidence") to a claim or defense. 
The key to discovery tools is - which can be used to get information from a nonparty! 
Depositions
Interrogatories 
Requests to Produce
Physical/Mental Examination 
Request for admissions
Duty to Supplement

Question 15

Duty to Supplement

Answer 15

If a party learns that its response to required disclosure, interrogatory, request for production, or request for admission is incomplete or incorrect, you have to supplement.

Question 16

Work Product

Answer 16

*Can be generated by any party
- Work product or trial preparation (material prepared in anticipation of litigation) is generally protected from discovery.
EXCEPTION:
1. Substantial need AND
2. Not otherwise available

Question 17

Ways to Accomplish Service

Answer 17

1. Personal Service
2. Substituted Process
3. Any services permitted by state law
4. Waiver by mail

Immune from service while instate to be a witness or party in another civil case

Question 18

Protective Order (and any other discovery enforcement)

Answer 18

1. Protective Order - responding party seeks order protecting info that’s overburdensome involves trade secrets,
2. Partial Violation - Receiving party answers some/objects to others.
   First, request order to compel; then
   Second, RAMBO sanctions
3. Total Violation - Fails completely to attend deposition or respond; Go straight to RAMBO sanction!

*FIRST, USE A GOOD FAITH EFFORT TO OBTAIN THE REQUESTED INFORMATION. (I.E., WRITE A LETTER EXPLAINING WHY YOU NEED IT) THEN, IF THE GOOD FAITH EFFORT FAILS, FILE A MOTION TO COMPEL.

Question 19

RAMBO Sanctions

Answer 19

Sanctions available to judge:

1. Establishment order (establishes facts as true)
2. Strike pleadings of the disobedient party (as to issues regarding discovery)
3. Disallow evidence from the disobedient party (as to issues regarding discovery)
4. Dismiss PL’s case (if bad faith shown)
5. Enter default judgment against defendant (if bad faith shown)

Question 20

Joining

Answer 20

HINT: Joinder rules that start with “C” (Counterclaim, Crossclaim) are claims between parties. Claims that start with “I” involve joining someone new to the case.

Proper parties (must have SMJ unless through SJ):

1. arise from same T/O;
2. Raise at least one common question.

Necessary and Indispensable Parties: Same absentees (non-parties) must be forced to join.

1. Who’s necessary? Can’t complete case without A; A’s interest may be harmed, or A claims interest which subjects party to multiple obligations
2. Can they be joined? PJ, joining won’t destroy diversity
3. If they can’t be joined, courts MUST: proceed without party OR dismiss

Question 21

Impleader

Answer 21

MOST IMPORTANT!
*Joining someone new. Bringing them in for INDEMNITY OR CONTRIBUTION

A third-party claim under Rule 14 is the joinder (by the defendant) of another party not originally a party to the action.

• Must bring in within 14 days.
• Must have PJ to serve on impleading party
• PL can assert claim against third-party defendant (TPD) if in T/O and vice versa!
• Note: EVERY CLAIM ASSERTED IN FEDERAL COURT MUST HAVE A BASIS IN SMJ (IF NO SMJ, THEN SUPPLEMENTAL)

Question 22

Intervention

Answer 22

Intervention of Right - Rule 24(a) where intervenor claims an interest relating to the property or transaction which is the subject of the action and the disposition of that action may affect the interest.

Permissive Intervention - Rule 24(b) where the court (at its discretion) allows a claim that involves a common question of law or fact.

Question 23

Interpleader

Answer 23

One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency. TWO TYPES:

1. Rule 22 - Stakeholder must be diverse from every claimant.
2. Statutory - One claimant must be diverse from one other claimant.

Question 24

Waiver by Mail

Answer 24

To accomplish - mail D a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the orm (e.g., stamped, addressed enveloped.)

• If D executes and mails form to P w/in 30 days, D waives formal service.
• P then files the waive in court and is effective when filed

Question 25

Counterclaim

Answer 25

• Claim against an opposing party.

- In Federal court it is part of D’s answer

Question 26

Compulsory Counterclaim

Answer 26

• Arises from the same transaction or occurrence as P’s claim.
• Unless you have already filed this claim in another case, if you do not file your claim is waived

Question 27

Permissive Counterclaim

Answer 27

• Does not rise from the same transaction or occurrence as P’s claim
• You may file it with your answer in this case or can assert in separate case

Question 28

Class Action

Answer 28

1. Numerosity- too many members for practicable joinder
2. Commonality- there is some issue in common to all class members, so resolution of that issue will generate answers for everybody
3. Typicality- Rep’s claims/defenses typical of those of the class, and
4. Rep. is adequate- Rep will fairly and adequately represent the class