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
