the complaint & service of process

Question 1

Complaint

Answer 1

a pleading filed to initiate a lawsuit

must contain:

1. grounds for subject-matter jurisdiction
2. statement of facts that are sufficient to show that P is entitled to relief.
   -must include sufficient facts in the statement
   –in cases alleging fraud or mistake, the P must describe the alleged fraud or mistake with particularity*

and

3. demand for judgment and the relief sought

Question 2

Amendments of complaints

Answer 2

1. a party can amend a pleading once as a matter of right.
   *the complaint can be amended within 21 DAYS of serving the original complaint
   *or, if an answer or motion to dismiss have been filed, within 21 DAYS of that service
   *a party can amend an answer within 21 days of serving the original answer.
2. a party can amend with permission for longer than 21 days:
   -permission of opposing parties- they can amend
   -permission of court- will consider reason for delay and prejudice

Question 3

SOL and amending complaints

Answer 3

Whether an amendment has been filed within the statute of limitations depends on whether the amendment seeks to add:
-a new claim or
-a new party

Question 4

amendment to add a new claim

Answer 4

(relation back rule) The amendment is considered filed on the date that the original complaint was filed
IF:
the new claim arises from the same transaction or occurrence as the existing claim

Question 5

amendment to add new parties

Answer 5

will relate back to the original filing date if:

1. the new claim arises from the same transaction and occurrence as the existing claim;
2. the new party knew of the suit soon enough to not be prejudiced (generally during the time permitted for service of the original complaint); AND
3. If the new party should have expected to be named, but-for a mistake in identity.

Question 6

signature requirement

Answer 6

every pleading, written motion, and other paper filed with the court must be signed by at least 1 attorney of record or by a party that is pro se.

*An attorney’s signature on a pleading certifies that the pleading is supported by such reasonable inquiry

Question 7

service of process

Answer 7

*must serve both the complaint and summons.
if not, service is not proper.

*must be served within 90 days of filing complaint

If the plaintiff fails to serve the defendant within 90 days, the court must dismiss the suit without prejudice.
–If the plaintiff can show good cause, the court must provide the plaintiff additional time for service.

Question 8

who can serve process?

Answer 8

anyone at least 18 years old and NOT a party

Question 9

how can process be served?

Answer 9

2 options:

1. Manner prescribed by state court in the state where:
   –Federal suit has been filed; OR
   –Where the defendant will be served.
2. manner specified by rule 4:

If the defendant is a natural person (4 options):
(1) Deliver process to the D personally (through a 3rd party);
(2) Leave at the D’s usual abode with a person of suitable age and discretion residing there;
(3) Serve the D’s registered agent; or
(4) Mail with a letter requesting the D waive in-person service.
—If the defendant declines to waive, they become responsible for the cost of personal service.

If the defendant is a corporation, partnership, or association (3 options):
(1) Deliver process to an officer;
(2) Deliver process to a managing agent or general agent; or
(3) Deliver process to any other agent authorized by appointment or by law to receive service.
–If law requires service by mail, it must be by hand and mail.

Question 10

service and personal jurisdiction

Answer 10

Service of process activates the court’s authority to assert PJ.

If a court has the power to assert PJ over a party, that power becomes active at the moment the defendant is served with process (or a waiver is filed with the court, if service is accomplished by a request for waiver).

Question 11

service and Due Process

Answer 11

The defendant is entitled to notice of the claims against him and an opportunity to respond to those claims.

-Notice through service = notice

-notice w/o service = could be constitutional problem.
-key is whether P took steps that were reasonably calculated to inform D of action against him

Question 12

service of new claims filed during the lawsuit

Answer 12

-Service of process is necessary when a new party has been added to the lawsuit (such as through impleader).
–Without process on the new party, the court’s power of PJ over the party will not be activated.

-For counterclaims, cross-claims, and other claims against current parties, service of process is unnecessary.