Professional Documents
Culture Documents
I.
II.
1. Pendant
a. Requirements:
i. Claim is asserted by the
plaintiff in a federal question
case; AND
ii. Claim arises from a common
nucleus of operative fact
(from the same transaction or
occurrence)
b. Even if these requirements are met,
the court has discretion to not hear
the supplemental claim if the federal
question is dismissed early in the
proceedings or if the state law is
complex or state law issues would
predominate
2. Ancillary
a. Requirements:
i. Claim is asserted by anyone
but the plaintiff in a diversity
or federal question case;
ii. Claim arises from a common
nucleus of operative fact as
the underlying case (from the
same transaction or
occurrence)
b. Even if these requirements are met,
the court has discretion to not hear
the supplemental claim if the federal
question is dismissed early in the
proceedings or if the state law is
complex or state law issues would
predominate
2. Some federal question cases (e.g., patent infringement, federal
antitrust and securities claims) have exclusive federal jurisdiction
and can only go to federal court
c. Removal (allows defendants to have a case filed in state court removed to
federal court)
i. A defendant may remove an action that could have originally been brought
by the plaintiff in federal court
ii. A case may be removed if:
1. It invokes federal question jurisdiction or diversity of citizenship
jurisdiction
a. In diversity cases only, however, removal is not available if
any defendant is a citizen of the forum state
III.
IV.
V.
i. A summons (formal court notice of a suit and time for response); and
ii. A copy of the complaint
b. Plaintiff must serve process within 120 days of filing the complaint or else the
case will be dismissed without prejudice (unless plaintiff shows good cause for
the delay)
c. Process may be served by any nonparty who is at least 18 years old and may take
the form of:
i. Personal service
1. Papers are given to defendant personally anywhere you find the
defendant in the forum state (unless defendant is present only to be
a witness or party in another civil case)
ii. Substituted Service
1. Process can be left with someone other than the defendant if:
a. It is the defendants usual abode;
b. The person being left with process is of suitable age and
discretion; and
c. The person being left with process resides there
iii. Process can be delivered to defendants agent authorized to receive service
(e.g., a corporations registered agent or any officer) or a state officer
appointed by operation of law (nonresident motorist, etc.).
iv. Waiver by Mail
1. Process can be mailed to the defendant by first class mail, postage
prepaid, as long as:
a. Defendant returns the waiver form waiving formal service
within 30 days
i. If he does not return the waiver form, he must be
served personally or by substituted service at his
cost)
v. Process can be delivered to a defendant in another state as long as state
law allows for it (with a long-arm statute, for example).
1. Exceptions:
a. Federal court can serve a defendant outside the forum state
regardless of state law under the Bulge rule and/or statutory
interpleader (see below)
d. These rules apply to formal service of process, by which a defendant is brought
before the jurisdiction of the court. For subsequent papers (e.g., answer, other
pleadings, motions, discovery requests and responses) can be served by delivering
or mailing the document to the partys attorney (or pro se party). If mailed, three
additional days are given for the required response time
Pleadings (documents setting forth the claims and defenses)
a. Notice pleadings
i. Pleadings must convey enough contentions to allow a meaningful
response (do not require great detail, just enough to put the other side on
notice)
b. Rule 11
Counterclaims
VII.
VIII.
a. An offensive claim against an opposing party (e.g., defendant vs. plaintiff) that is
filed with defendants responsive pleading (answer).
b. Two Types
i. Compulsory Counterclaim
1. A defendants claim against the plaintiff that arises from the same
transaction or occurrence as the plaintiffs claim;
2. Must be filed with the defendants answer in the pending case (or
else defendant waives the right to sue on the claim)
a. Exceptions
i. If the claim had already been asserted before
plaintiff sued defendant, then it is not compulsory
ii. If the defendant never had to answer (because he
asserted a pre-trial motion and it was granted) he
never had to assert the compulsory counterclaim, so
he can bring the claim in a separate case
3. If there is no independent basis of subject matter jurisdiction for
the counterclaim, the court may still hear the claim under ancillary
supplemental jurisdiction
ii. Permissive Counterclaim
1. Requirements:
a. A claim not arising from the same transaction or occurrence
as the plaintiffs claim;
b. Claim does not have to be asserted in a pending case (can
sue in a separate action);
c. Claim must meet the requirements for subject matter
jurisdiction (diversity or federal question)
i. Claim can never meet the requirements for ancillary
supplemental jurisdiction because the claim does
not arise out of the same transaction or occurrence
Cross-Claim (claims made against a co-party; defendant v. defendant)
a. Requirements
i. Claim must arise out of the same transaction or occurrence as the
underlying action; and
ii. Meet the requirements for subject matter jurisdiction (diversity or federal
question) or supplemental jurisdiction
Amending Pleadings
a. A plaintiff has a right to amend a complaint one time prior to when the defendant
serves an answer
b. Relation Back Doctrine
i. Amended pleadings relate back to the date of the original pleading if they
concern the same conduct, transaction, or occurrence as the original
pleading
1. Example: P files a complaint on July 1. The statute of limitations
runs on July 10. P then files and serves an amended complaint
(adding a new related claim) on July 15 (before the defendant has
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
b. Modern Rules
i. Will allow nonparties to use/take advantage of a
prior judgment when claimed by:
1. The defendant in the second case who was
not a party to the original case (non-mutual
defensive collateral estoppel); or
2. The plaintiff in the second case who was not
a party to the original case in some cases if
it is fair (non-mutual offensive collateral
estoppel)
a. Factors Used to Determine if It Is
Fair:
i. Party collateral estoppel is
being asserted against had a
full opportunity to litigate in
the first case;
ii. Party collateral estoppel is
being asserted against could
foresee multiple litigation;
iii. Plaintiff could not have
joined easily in the first case;
and
iv. There are no inconsistent
judgments on record (i.e., no
multiple litigation arriving at
different results on the issue)