Service of Process and rule 8

Question 1

What gets served on a P

Answer 1

4(c)(1)- Complaint and summons (orders to answer complaint) must be served together

Question 2

Who serves process on the D

Answer 2

4(c)(1)- P is responsible for having summons/ complaint served
4(c)(2)- any person who is at least 18 and not a party may serve summons/ complaint (P lawyer is allowed but not P)

Question 3

When must service be made

Answer 3

After complaint is filed 4(b)

4(m)-
Court must dismiss an action if service is not made on the D within 90 days after filing, or order service to be made in specific time

exception:
If P shows good cause for failure to make service, the court must grant an extension of the time to make service for “an appropriate period”

if bar, P would risk statute of limitations/ new filing fee

Question 4

4(e) four methods to serve the summons

Answer 4

• Deliver the papers to the D personally
• leave the summons and complaint at the D “dwelling or usual place of abode w/ someone of suitable age and discretion who resides there
• Deliver the summons and complaint to an agent of the D authorized by appointment or by law to receive service of process
• Follow the state rules

Question 5

Waiver of Service of Process

Answer 5

4(d)
Incentive for D to waive service

(1) Creates a duty to avoid unnecessary expenses of serving the summons
(2) Impose the costs of service on a D who refuses to waive service w/o good cause
(3) 60 days rather than the usual 21 to respond to the complaint

Question 6

Rule 8 (a)
3 requirements for complaint

Answer 6

(1) a statement of basis of court jurisdiction
(2) Statement of the relief P is seeking
(3) short and plain statement of the claim showing pleader is entitled to relief

Question 7

Rule 8 Notice pleading to the Modern standard

Answer 7

Conley- Let the P get case started and through discovery, we will see if there is factual substance

TWIQBAL- Discovery is expensive so unless P has enough in case (Focus on allegations of facts) that key allegation is “plausible” not just possible
- To determine plausibility the judge uses own experience and Common Sense (every judge will see own way subjective)

Won’t allow litigation:
- “NO bare allegations or legal conclusions”
- Short and plain statement of the claim “showing pleader entitled to relief”
No possible but Plausible

Question 8

Rule 9

Answer 8

9(b) and 9(g)
heightened pleading requires details

Fraud
mistake
special damages

Question 9

Rule 11

Answer 9

Aimed at avoiding frivolous or baseless documents in our litigation

professional responsibility

not just to pleading, all documents EXCEPT discovery
(Continuing certification- every time argue from that document)
(Sanctions are discretionary: Not entitled to sanctions “not to punish but detour”)
(A motion for sanctions cannot be filed right away: MUST draft motion and serve on party 21 days to fix problem “safe harbor”)

(1) requires attorney to sign all these documents
- certified reasonable inquiry
-not for improper purpose
-legal intentions are warranted/ non frivolous argument that law should change
- factual contentions would have evidentiary support
- denials of factual contentions would have evidentiary support

Question 10

Defendants’ response Rule 12

Answer 10

(1) Motion or
(2) By answer

Question 11

Served with process when should D respond (motion or answer)

Answer 11

Defendant must respond within 21 days

or

60 days if waived service 4d

Could risk Default if no response