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Pleadings Rules/Statutes

SERVICE
FRCP 4(a): a summons must: (A) name the court and the parties; (B) be directed to the defendant;
(C) state the name and address of plaintiff?s attorney or the plaintiff (if self-represented); (D) state
the time within which the defendant must appear and defend; (E) notify the defendant that failure to
appear will result in default judgment; (F) be signed by the clerk; (G) bear the court?s seal
FRCP 4(b): plaintiff must present summons to the clerk for signature and seal. If it?s properly
completed, clerk signs, seals, and issues to plaintiff for service on defendant.
FRCP 4(c): (1) summons must be served with a copy of the complaint within 90 days. (2) summons
can be served by anyone who is at least 18 years old and not a party. (3) plaintiff may request the
court appoint a U.S. marshal, deputy marshal, or specially appointed person to render service of
process.
FRCP 4(d): WAIVER (1) plaintiff asks defendant to sign document in order to avoid unnecessary
expenses in service of process. Must include copy of the complaint, two copies of the waiver form,
and a prepaid envelope. (2) failure to waive results in expenses incurred in making service, and any
reasonable expenses, such as attorney?s fees of any motion required to collect service expenses.
(3) if waiver obtained, a defendant doesn?t have to respond until 60 days after request for waiver
was sent. (or 90 days if foreign defendant). (4) if waiver is obtained, proof of service is not required
and FRCP apply as if a summons and complaint had been served at the time of filing the waiver. (5)
jurisdiction and venue objections are not waived when service of summons is waived.
FRCP 4(e): serving individuals: (1) follow state law for serving a summons. (2)(A) deliver a copy of
summons and copy of the complaint to individual personally. (B) leave a copy at the individual?s
Personal Jurisdiction Rules/Statutes
dwelling or usual place of abode with someone of suitable age and discretion who resides there. (C)
US Const. Amend V: limits federal due process . Government cannot deprive any person of life,
deliver to an authorized agent of the person.
liberty, or property without due process of law.
FRCP 4(h): (1)(A) serving a corporation can be done by following Rule 4(e)(1) [READ THAT RULE
US Const. Amend XIV: limits due process in the states. States cannot deprive any person of life,
ABOVE] or (B) by delivering a copy of the summons and complaint to an officer, managing or
liberty, or property without due process of law.
general agent, or other lawfully authorized agent.
FRCP 4(k)(1)(A): piggyback off the state long-arm statute. if there is one.
FRCP 4(k)(1)(C): allows federal courts to assert PJ if a federal statute authorizes the court to do so. FRCP 4(m): Time limit is 90 days after filing complaint
COMPLAINT
FRCP 4(k)(2): authorizes jurisdiction over a foreign defendant, as long as the claim arises under
FRCP 8(a): puts defendant on notice and must contain: short & plain statement of: (1) grounds for
federal law.
jurisdiction; (2) the claim showing entitled to relief; and (3) demand for the relief sought
Five Basis for Personal Jursidiction
ANSWER
1. Consent 2. Personal Service in the state 3. Domicile 4. Property 5. Minimum Contacts
FRCP 8(b): ADMIT/DENY: (1)(A) & (B) Defendant must state affirmative defenses and admit/deny
Venue Rules/Statutes
allegations. (5) Lack knowledge or information ? Effect of a denial. (6) Failure to deny ? Admitted
28 U.S.C. 1391: venue is proper for federal question and diversity jurisdiction in (1) any judicial
FRCP 8(c): AFFIRMATIVE DEFENSES: Some affirmative defenses (not exclusive): Contributory
district where any defendant resides (if all defendants reside in the same state), (2) any judicial
negligence; fraud; res judicata; statute of frauds; statute of limitations.
district in which a substantial part of the events or omissions giving rise to the claim occurred, or a
FRCP 12(a): TIME FOR AN ANSWER: If service is waived ? defendant gets 60 days. If service is
substantial part of property that is subject of the action is situated, OR (3) any judicial district in
not waived? defendant gets 21 days
which any D is subject to personal jurisdiction at the time the action is commenced, if there is no
PLEADINGS
district in which the action may otherwise be brought.
FRCP 8(d): PLEADING STANDARDS: Allegations must be simple, concise, and direct
28 U.S.C. 1406(a): Improper venue remedies are as follows-->(1) district court must dismiss, OR
FRCP 8(e): ?Pleadings must be construed so as to do justice.?
(2) district court can transfer to another district court where it could have been brought if it is in the
FRCP 10: Caption req?d for pleadings
interest of justice. ***Cases can only be transferred to another district court***
FRCP 11(a), (b): (a) Attorney signature; (b) By signing, claiming that a pleading is brought in good
28 U.S.C. 1404: Inconvenient venue remedies are as follows--> (1) for convenience, a district
faith, have reasonable basis in fact and law
court can transfer any civil action to another district where it might have been brought. Convenience
SANCTIONS
and interests of justice should be considered.
FRCP 11(c): Subject to sanctions if the court finds that you did not in fact bring it in good faith. Party
Initiated
or
Sua
Sponte.
Party-initiated:
21-day
safe harbor provision, objective reasonableness
Joinder
standard. Sua Sponte: No safe harbor, objective reasonableness or subjective good faith. Does not
COUNTERCLAIMS/CROSSCLAIMS (IMPLEADER)
apply
to
discovery.
FRCP 13(a): Compulsory Counterclaim: defendant must state as a counterclaim any claim against
MOTIONS
the plaintiff that arises out of the same transaction or occurrence that is the subject of the complaint.
FRCP 12(b): (1) Lack of SMJ, (2) Lack of PJ, (3) Improper venue, (4) Insufficient process, (5)
FRCP 13(b): Permissive Counterclaim: defendant may state as a counterclaim any other claim
Insufficient service of process, (6) Failure to state a claim upon which relief can be granted, (7)
against the plaintiff (but the claim must have an independent basis for federal jurisdiction)
Failure to join a party under Rule 19. A failure to raise (2)-(5) waives those defenses ? others can
FRCP 13(g): Crossclaim: A pleading may state as a crossclaim against a coparty any claim that
be raised throughout litigation
arises out of the transaction or occurrence that is the subject matter of the original action. The
FRCP 12(c): Occurs after the pleadings have closed. Court will examine all pleadings and
crossclaim may include a claim that the coparty is liable for all or part of the claim asserted in the
determine if judgment in favor of either party is appropriate. Either party can make this motion.
action against the crossclaimant.
FRCP 12(e): Motion for a More Definite Statement. Must be so vague or ambiguous that the party
FRCP 14(a): Impleader: If the defendant (as ?third party plaintiff?) may have a right to indemnity by
cannot respond
a third party (as ?third party defendant?), the defendant may implead, or bring in a third party, in
FRCP 12(f): Motion to Strike ? Insufficient defense or redundant, immaterial, impertinent, or
case ?third party plaintiff? loses to the main plaintiff, ?third party defendant? may be liable to ?third
party plaintiff.? (a) Allows third party plaintiff to bring claim against third party defendant. In doing so, scandalous matter
AMENDING PLEADINGS
third party plaintiff may make claim against plaintiff, plaintiff may make claim against third party
FRCP 15(a): Amending may be done within 21 days after serving it. Amending pleading after a
defendant.
responsive
pleading:
can
be
done
within
21 days after service of a responsive pleading or 21 days
JOINDER GENERALLY
after Rule 12(b), (e), or (f) motion. ***Leave should be freely given. Exceptions to freely given
FRCP 18: A party may join, as independent or alternative claims, as many claims as it has against
leave:
(1)
bad
faith,
(2)
repeated
failure/lack
of diligence, (3) whether it matters/utility to amend, (4)
an opposing party.
taken one party by surprise, (5) has non-moving party been prejudiced? ***response to amended
FRCP 19(a): Required Party: Party is necessary when: (1)(A) The party is necessary for court to
pleading
must
be
done
within
time
remaining
to respond to original pleading or 14 days, whichever
grant complete relief; or (1)(B) The party has a legally protected interest that would be impaired or
is longer.
impeded or that creates the risk of inconsistent rulings and obligations
FRCP
15(b):
amending
pleadings
during
and
after trial. Factors to consider when granting leave to
FRCP 19(b): Required Party ? Joinder Infeasible: When joinder of such a necessary party is not
amend: (1) the reason for the amendment (2) the amending party?s diligence (3) the prejudice
feasible, the court should determine whether in equity and good conscience the action should
caused
to
the
opposing
party
(4)
whether
the
amendment
would be futile (5) the amending party?s
proceed without that party. Factors ?> (1) Possible prejudice to party or others; (2) minimizing
prior amendments
prejudice by shaping relief; (3) adequacy of remedy without party?s presence; (4) adequacy of
FRCP
15(c):
when
an
amendment
is
allowed,
the
amendment
is usually treated as though it were
plaintiff?s remedy if the action were dismissed
filed on the date of the original pleading if: The statue of limitations governing the cause of action
FRCP 20: Permissive Party: (a) Permissive joinder of other parties as plaintiffs or defendants
allows
the
relation
back;
The
claim
or
defense
in
the
amending
pleading arose from the same
allowed where: (A) they assert any right to relief or a right to relief is asserted against them arising
transaction or occurrence as that set forth in the original pleading; or When a new party is joined,
out of the same transactions or occurrences; and (B) any common question of law or fact will arise
and
it
is
not
?
unfair?
for
the
claim
against
that
party
to
be
treated
as if it were raised on the date that
in the action. (b) The court may issue orders to protect parties from embarrassment, delay,
the original pleading was filed.
expense, or prejudice
INTERPLEADER
FRCP 22: Rule interpleader: Available whenever there exists people with claims that may expose a
party to double or multiple liability
28 U.S.C. 1335: Statutory Interpleader: Essentially, through statutory method, jurisdictional limits
are broadened; a) minimum diversity is allowed, so there does not need to be complete diversity; b)
the amount in controversy need only be $500 or more; c) 2361: Service of process is nationwide;
INTERVENTION
FRCP 24(a): Intervention of Right: Court must permit: (1) Person had an unconditional statutory
right; or (2) Person claims an interest that may be impaired and no existing party will adequately
represent that interest
FRCP 24(b): Permissive Intervention: (1) Court may permit: (a) Person has a conditional statutory
right; or (b) Person has a claim or defense that shares with the main action a common question of
law or fact OR (2) By Government Officer or Agency when claim is based on a statute, executive
order, regulation, order, requirement, agreement made or administed by the agency.
Subject Matter Juridiction Rules/Statutes
Art. III 2: gives 9 types of disputes that Congress may authorize to be heard in federal court
Diversity Jurisdiction
28 U.S.C. 1332: complete diversity & amount-in-controversy over $75,000
Federal Question Jurisdiction
28 U.S.C. 1331: plaintiff's claim must be arising under Constitution or laws of the United States
Removal to Federal Court
28 U.S.C. 1441: Allows defendant to move to federal court if plaintiff could?ve brought the case
there first. removal can?t happen if defendant is a citizen of the state where the civil action is
brought.
28 U.S.C. 1446: when defendant files for removal, must file notice in federal district court with a
short and plain statement of the grounds for removal, together with a copy of all process, pleadings,
and orders served upon the defendant. A defendant has 30 days from the date the complaint was
filed to file notice of removal. When the basis for removal is under 1441(a), all defendants must join
in removal notice.
28 U.S.C 1447: a case may be remanded back to the state court if SMJ does not exist. Motion to
remand must be filed within 30 days after filing of the notice of removal. If at anytime the case lacks
SMJ, the case shall be remanded.
->In federal question cases, citizenship is irrelevant
->In diversity cases, no defendants can be a citizen of the state where the action is brought

IMPLEADER NOTES
Rule: Under FRCP Rule 14, at any time after the commencement of an action, a defendant
(as a third-party plaintiff ) may implead (or join) a nonparty who is or may be liable to the
defendant (or third party plaintiff) for all or part of the plaintiff?s claims against him. The
third-party defendant cannot implead a third-party defendant as a means of shifting liability
completely to that party.
Leave of court: Leave of court is not required as long as the third-party plaintiff serves his
summons and complaint to the third-party defendant within 10 days of serving the answer
to the plaintiff?s claim.
->The plaintiff may also implead a third-party defendant if a counterclaim is filed against him
and the third-party defendant is liable to him for any judgment on the counterclaim.
->A third-party claim always falls under the supplemental jurisdiction of the court.
->If venue is proper in the original suit, the filing of the third-party claim, regardless of
location of the third-party defendant, does not affect venue.
->The third-party defendant may also make any counterclaims against the third-party
plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The
third-party defendant may also assert any claim against the plaintiff arising out of the
transaction or occurrence that is the subject matter of the plaintiff?s claim against the
third-party plaintiff.
->The original plaintiff may assert any claim against the third-party defendant arising out of
the transaction or occurrence that is the subject matter of the plaintiff?s claim against the
third-party plaintiff, and the third-party defendant may then assert any defense as provided
in Rule 12 and any counterclaims and cross-claims as provided in Rule 13.
Personal Jurisdiction Notes
Pennoyer Rule - Every State possesses exclusive jurisdiction and sovereignty over
persons and property within its territory. No state can exercise direct jurisdiction and
authority over persons or property without its territory. (FOUR BASES OF PJ)
Hess Rule - The court ruled that the statute was constitutional. Hess implied consent by
driving a dangerous machine on the roads in MA. Consent can be implied.
International Shoe Rule - For personal jurisdiction, the defendant needs to have certain
minimum contacts with the state such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice. Continuous corporate acts in a state
can be substantial enough to establish personal jurisdiction.
Shoe Specific Jurisdiction: In personam exists if the claim arises out of the defendant?s
deliberate contact with the state. The key to specific jurisdiction is that the plaintiff?s claim
must arise out of the particular contact that the defendant had in the state.
Shoe General Jurisdiction: In personam jurisdiction can exist even if the claim does not
arise out of the defendant?s in-state contacts, as long as the defendant has ongoing
contacts with the state. Corporation: the continuous corporate operations within a state
are so substantial and of such a nature as to justify suit against it on causes of action
arising from dealings entirely distinct from those activities. Individual: exists if domiciled in
a particular state.
McGee Rule - Minimum contacts are enough to give the court personal jurisdiction. The
state of California should be able to protect its citizens in claims such as this. A person will
not have the means to pursue a case for a smaller claim in a foreign venue, but the
businesses will not be too inconvenienced by the rule
Worldwide Volkswagen Rule: A non-resident defendant must purposely avail himself of
the forum state?s privileges and protections for that state to have personal jurisdiction over
him unless the case pertains to a product connected with defendant?s business that was
brought into the forum state by the plaintiff. Foreseeability that the product might eventually
enter the state is irrelevant if there is no purposeful availment of that state?s privileges and
protections..
Burger King Rule - Minimum contacts can establish personal jurisdiction in spite of the
other factors. An individual?s contract alone cannot automatically establish personal
jurisdiction with another party?s home forum. Prior Negotiations, contemplated future
consequences, terms of the contract, and parties?actual dealings are evaluated to
determine minimum contacts.
Asahi Rule - Fair Play and Substantial Justice. Minimum Contacts. Purposeful Availment.
In determining Fair Play and substantial justice, a court must consider the burden on the
defendant, the interests of the forum state, and the plaintiff?s interest in obtaining relief. It
must also weigh in its determination ?the interstate judicial system?s interest in obtaining the
most efficient resolution of controversies and the shared interest of the several states in
furthering fundamental substantive social policies. Stream of Commerce.
Asahi Rule, part 2: Reasonableness depends on the following factors: (1) the defendant?s
burden, (2) the forum state?s interest, (3) the plaintiff's interest, (4) the judicial system's
interest in the ?efficient resolution of controversies,? and (5) the ?furtherance of fundamental
substantive social policies.?
Jackson v. California Newspapers Rule: 1. Interactive websites whereby defendants
conduct business and elicit sales are enough to grant personal jurisdiction. 2. Passive
websites that afford internet users no interactivity are not enough to grant personal
jurisdiction. 3. Interactive websites whereby a user can exchange information with the host
computer may be sufficient to find personal jurisdiction. (ZIPPO SLIDING SCALE--> same
as minimum contacts, but virtually)
Daimler Rule: General jurisdiction cannot be exercised over a foreign company where the
actions of a subsidiary of the company are slim and unrelated to the suit.
Harris v. Balk Rule - Debt is attached to the person that owes the debt and can be
attached to lawsuits under a basis of personal jurisdiction.A court can exercise in rem or
quasi in rem jurisdiction as long as the asset at issue was within the state and attached at
an appropriate time.
Shaffer v. Heitner Rule - Court only has power on persons or property within its territory.
When the only contact the defendant has with the forum state is the location of property as
defined by statute in the forum state, the forum lacks personal jurisdiction over the
defendant unless the minimum contacts test of International Shoe is satisfied.
Burnham v. Superior Court Rule: Jurisdiction based on physical presence alone
constitutes due process because it is one of the continuing traditions of our legal system
that define the due process standard. An individual?s physical presence in a state at the
time process is served upon them satisfies traditional notions of fair play and substantial
justice.
Bensusan Restaurant Corp v. King Rule - Long arm statute and then due process. New
York long arm statute requires that a tortious act within the state. The actions of the
defendant were not committed inside the state.

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