Service of Process & Pleadings Flashcards
SOP - what must be included in the summons? (7 components)
(1) Contents. A summons must:
(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff’s attorney or—if unrepresented—of the plaintiff;
(D) state the time within which the defendant must appear and defend (21 days);
(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;
(F) be signed by the clerk; and
(G) bear the court’s seal.
SOP - who may make service & how must they make it (what to include, timeline)?
1) In General:
»> service = summons & complaint.
»> The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) (90 days after filing the complaint, absent a good faith dispute, or the action is dismissed) and must furnish the necessary copies to the person who makes service.
(2) By Whom. Any person who is at least 18 years old and NOT A PARTY may serve a summons and complaint.
(3) By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. §1915 or as a seaman under 28 U.S.C. §1916.
SOP - purpose of service, notice standard
A defendant must be properly notified of a pending action by a reasonable method and must be given an opportunity to be heard.
o receiving notice and knowing about it as ∆ is not a requirement – notice must just be reasonably calculated to reach defendant (actually receiving the notice is not the measure)
»> though, if proper SOP is made but ∆ still fails to receive notice, a court will usually refuse to enforce the default judgment
»> **we don’t care whether a more efficient method of SOP is available! this is a binary inquiry – is the chosen method “reasonably calculated” or not?
»> even if you receive notice, the process can be considered unfair! (not reasonably calculated) – i.e. file a 12(b)(4) mtn
SOP - 5 ways to obtain proper service
Five ways to obtain proper service:
(1) personal service
(2) substituted service (competent third party who ACTUALLY RESIDES at defendant’s home - NOT place of business!)
(3) agent
(4) mail (waiver)
(5) state law methods (service may be made in any other manner allowed by state law)
»> can be of either the state in which the fed court sits or the state in which service is to be made
»> most commonly, service BY MAIL
FRCP 4
SOP - service on OOS defendants via mail & corporations
Service on out-of-state defendants can be achieved by registered or certified mail. If no other way, can seek constructive notice via publication.
Service on business or corporation is achieved by serving an officer or designated agent of a corporation with the summons and complaint.
SOP - who issues the summons; time to respond; waiver
The court issues the summons and informs a defendant they have been sued, advises they must respond within 21 days and provides information about the court and the case.
**if defendant waives formal service, the timeline becomes 60 days
»> in this case, plaintiff sends defendant complaint and waiver form (no summons)
»> **waiver does not mean you waive your defenses!
»> date of SOP becomes date plaintiff files the waiver with the court
complaint - function & contents (3)
A complaint is often the initial pleading in a case. It serves the function of GIVING NOTICE to the opposing party.
It must provide:
> > > A short and plain statement of the grounds for the court’s jurisdiction;
> > > A short and plain statement of the claim showing that the pleader is entitled to relief;
> > > A demand for judgment for relief.
See FRCP 8.
complaint - twombly/iqbal standard; caveat for particularity pleading
twombly/iqubal: plaintiffs in federal court actions must state facts supporting a PLAUSIBLE claim for relief.
»> hard to test b/c “plausible” is really just up to the judge’s discretion
> > > Plausible is more than possible: the latter says “something may happen,” whereas the former says “the statement sounds logical and may well be true”
> > > i.e. you can’t just assert legal conclusions that restate the elements of the law or say “he broke the law!” you need well-pleaded factual allegations that give evidence to specific ways the defendant broke the law
caveat: assertions of fraud, mistake, or special damages require *pleading with more particularity
the seven 12(b) responses to a complaint
Prior to filing an answer, the defendant may file a motion and raise the following defenses:
Lack of subject matter jurisdiction;
Lack of personal jurisdiction;
Improper venue;
Insufficient process (issues with the papers, like you included a complaint but not a summons or the summons was incomplete);
Insufficient service of process (issues with service of the papers);
Failure to state a claim upon which relief can be granted;
Failure to join a party needed for a just adjudication
mtn for more definite statement
A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.
The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
FRCP 12(e)
answer - general substantive requirements
“(1) In General. 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 by an opposing party.”
or say you without sufficient knowledge to admit/deny (see 8(b)(5))
FRCP 8(b)
answer - rules for denials (what they must do; 2 variations)
“(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.
(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a GENERAL denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those SPECIFICALLY admitted.”
**general denials are uncommon because you typically admit to at least one thing, like jurisdiction
FRCP 8(b)(2) and (3)
answer - lacking knowledge/sufficient info; effect of failing to deny
(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the EFFECT OF A DENIAL
(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.
»> ex) if plaintiff pleads “defendant was drunk driving” and defendant responds only with “plaintiff has no proof” - that did not respond to the pleading and plaintiff’s statement is therefore ADMITTED by defendant
»> moral of the story: DENY, do not simply “argue back”
FRCP 8(b)(5) and (6)
12(b)(6) - how do courts analyze
Failure to state a claim.
court looks only to allegations of facts in complaint for plausibility
In deciding a 12(b)(6) motion, the court views all facts in the plaintiff’s complaint as true and makes all inferences in favor of the plaintiff.
affirmative defenses - when to raise; effect of no response
A defendant also MUST raise certain affirmative defenses in his initial ANSWER, or the defenses are waived.
allegations in the defendant’s answer are deemed to be automatically denied - i.e. no need for plaintiff to respond
responding to the complaint - options & timing
file a motion or an answer - if a defendant does not file a 12(b) motion, then the defendant generally must answer with 21 days after service of the complaint.
If a defendant waives formal service the defendant must answer within 60 days of service.
The defendant may file a counterclaim with the answer. If it arises out of the same transaction or occurrence, it is called a compulsory counterclaim.
**if the pre-answer motion is denied, defendant must serve the answer within 14 days of denial
entry of default & default judgment; “appearance”; defendant’s relief
Entry of Default:
- If a defendant fails to file an answer in the proper time frame, plaintiff can MOVE to have THE CLERK can notate in the case file a default.
Default Judgement:
(1) CLERK can enter default judgment if:
> > > D made no response (has not appeared)
**NOTE: no second notice req for default judgment if defendant has not appeared!
> > > claim for sum certain (limited by amount of relief requested in the complaint)
> > > P gives affidavit of amount owed
> > > D is not a minor or incompetent
- (2) however, if ANY of the above is NOT satisfied (typically defendant has appeared with a M2D or something), the clerk can no longer enter DJ, and the COURT must take over. if defendant has APPEARED, the court:
> > > will have a hearing with judge’s discretion
> > > defendant must receive notice 7 days before hearing
> > > judgement still limited by amount in complaint & type of relief requested in complaint
- “appearance”: includes any actual formal appearance before the court and any other action that clearly indicates that the defendant intends to contest the case on the merits (e.g., the defendant’s continued settlement negotiations)
- defendant’s relief: once a default entered, a party may not proceed with the action until the default has been set aside by the court.
»> defendant can move to set aside entry or judgment by showing good cause and a viable defense to plaintiff’s claims
amending a pleading - rules for plaintiffs and defendants
plaintiff: has a right to amend complaint ONCE no later than 21 days after defendant serves first rule 12 response
defendant: has a right to amend ONCE no later than 21 days of serving his motion/answer
»> ***super important: if defendant’s first response is an answer in which he forgot to raise waivable defenses/affirmative defenses, he has a right to amend and include those things in his amendment
THEREAFTER, a pleading may be amended only by the written consent of the adverse party OR by leave of the court upon a motion (usually granted unless waste of time or frivolous)
THEREAFTER, if in court, plaintiff raises a new claim/issue and defendant fails to object, plaintiff can move to amend the complaint to include that issue - a “variance”
»> essentially by acquiescing to the new claim being brought up in court, the defendant impliedly consents to it being tried
See FRCP 15
rule 11 - 4 averments; effect on oral arguments
When a lawyer presents a pleading, the lawyer is representing to the court that:
(1) The filing is not presented for any improper purpose;
(2) The legal contentions are supported by existing law or are a non frivolous argument for the modification of existing law or the creation of a new law;
»> distinguish contentions legitimately trying to change the law (like arguing against Plessy) from contentions argued that have been repeatedly shot down by the state’s courts
(3) The allegations and factual contentions either have, or will have after further investigation, evidentiary support.
(4) Denials of factual contentions are warranted on the evidence or reasonably based on a lack of information and belief.
**oral arguments: later arguing for a position that was certified in one of your Rule 11 statements is ALSO subject to that Rule 11 averment
rule 11 - results of violation (court intervention; other party intervention)
sua sponte: If an attorney violates Rule 11, a court has the discretion to sanction the lawyer.
show cause hearing: A court on its own initiative may enter an order describing the matter that appears to be a Rule 11 issue and direct the party to show cause why there is not a violation.
motion by other party (safe harbor): If the party does not remove the pleading within 21 days, the moving party may then file a motion for sanctions with the court.
rule 11 - where does it not apply?
Rule 11 does not apply to discovery or disclosures.
omnibus motion rule
3 unwaivable defenses
pre vs post-answer motions
effect on other defenses
R12(g)(2): “omnibus rule” – defendant must consolidate all defenses into their first response to the Complaint (whether it be a MTD or an Answer)
> > > **a party cannot merely “reserve” the defense, it must argue the defense
UNwaivable Defenses:
- R12(b)(1) invalid SMJ
- R12(b)(6)+(7) joining parties and stating a claim
R12(h)(2) does not permit a second PRE-answer motion, but does permit a POST-answer motion at any time
other defenses, like “this claim is already being litigated elsewhere,” or “claim preclusion” will generally NOT be waived and may be amended with the leave of the court as justice so requires
motion to strike
asks the court to remove redundant or immaterial things from a pleading
**ANY party can move to strike
FRCP 12(f)
improper process vs improper SOP
improper process refers to an error with the papers (summons and complaints) served
by contrast, improper SOP refers to an error with the SERVICE METHOD of the papers
amending pleading - relation back (general rule & use to change a defendant)
general rule: if the amendment of a pleading concerns the same T/O as the original complaint, it will be treated as if filed on a date that the original pleading was filed - i.e. YOU CAN BEAT THE SOL
change of a defendant: amendment will relate back if…
- concerns same T/O as original complaint
- defendant had knowledge of the case (to avoid prejudice)
- defendant knew or should have known that, but for a mistake, she would have been named originally
***only occurs in one fact pattern - plaintiff sued wrong defendant first and the right defendant knew about it (i.e. suing “Walmart Inc” instead of “Walmart Ltd”)
supplemental pleadings
sets forth things that happen AFTER the pleadings were filed - all at court discretion
ex) after plaintiff files suit, defendant punches plaintiff - plaintiff must file a motion for supplemental pleading to add the tort claim
when is a federal action officially commenced
FQJ: filing of complaint
diversity: state law rules (could be filing or service)
motion for judgment on the pleadings
pretty much the same as a 12(b)(6), but now we consider all the pleadings (so the answer too) and assume all facts in favor of the plaintiff to determine whether plaintiff has stated a claim for relief
