Rule
Rule 4 – Service of
Process
Rule 4(e)(2)
Methods of Service
Rule 4(h)(1)
Service to US
companies/businesses
Rule 4(m)
Rule 4(k)(1)(A)
Geographic Limitations
Rule 4(D)
Waiver of Service
Rule 4(k)(1)(B)
Rule 4(k)(1)(C)
Rule 4(k)(2)
§1391 B1
Plaintiff’s Choices
§1391 B2
Plaintiff’s Choices (2)
§1391 B3
Fallback Venue
§1404A
Transfer of Venue
§1406A
Rule 8(a)
Complaint
Rule 8(a)(1)
Complaint
Rule 8(a)(2)
Complaint
Text
Notes
SERVICE OF PROCESS
4(c) – process must consist of summons and copy of
the complaint
4(e)(2)(A) – Personal delivery/service to Δ (can be
done anywhere)
4(e)(2)(B) – leave copies at dwelling or place of
abode with a person of suitable age and discretion
4(C)(2) – can be made to any non-party who is at
least 18
4(e)(2)(C) – delivery to agent appointed by Δ
(Zhukent)
Delivery to an officer
Delivery to an Agent
Delivery to manager
Delivery with methods of 4(e)(1)
120 days to serve other party
Service establishes PJ over Δ who is subject to the
jurisdiction of a court of general jurisdiction in the
state where the district court is located
Done by first class mail
Respond within 60 days
P mails D process and 2 copies of a waiver form
If D signs waiver and mails back within 30 days,
has waived formal service of process
Service establishes PJ over a Δ who is within 100
miles of the court house AND joined under Rule 14
or Rule 19
Bankruptcy cases allow for nationwide service of
process
In FQ, if a non-citizen corporation or person has
nationwide contacts, there can be PJ
VENUE
P may lay venue in any district where all D’s reside
People = district where domiciled
Business = all districts where subject to PJ
May lay venue in any district where substantial part
of claim arose
Applies where no US district that meets either of 2
prior choices
Original fed. District is a proper venue
Transfer necessary due to improper venue
PLEADINGS
“a short plain statement of the claim showing that
the pleader is entitled to relief”
Statement of SMJ grounds
Statement of the claim (must be COA)
- Must prove legal sufficiency and factual
sufficiency
Serve under the provisions of the state where
the court sits
4(e)(1): Pursuant to the laws of the state in
which you are serving the Δ. Allowed to use
methods of service under state law.
4(c)(2): server need not be an officer or
appointed by Court
Can serve process throughout state in which
Fed. Court sits
Can serve process outside the forum if state
court could do so as well
D isn’t waiving any other defenses (just has
longer time to reply)
If D doesn’t send waiver back or respond, must
pay cost of service for formal service of
process
Congress can make exceptions to provide for
nationwide service of process if they had
business throughout the states – availed
themselves to the benefit of the country (5th
Amendment) Usually for foreign corporation
Exception to 4(k)(1)(A)
Note:
Doesn’t apply in cases removed from state to
fed. (For all 3 P options)
Apply only when P filing initially in fed. Court
(For all 3 P options)
Note:
Court may transfer to other district for
convenience of parties/witnesses/interest of
justice
Court can transfer in interest of justice or
dismiss
Form 7a – Diversity
Form 7b – FQ
Twombly/Iqbal
-
Rule 8(a)(3)
Rule 8(b)
Answer (Admissions,
Denials, DKI)
Rule 8(b)(6)
Failure to Deny
Rule 8(c)
Affirmative Defenses
Rule 8(d)(3)
Alternative Statements
Rule 9(b)
Fraud Pleadings
Mistake Pleadings
Rule 9(g)
Special Damages
Rule 10
Form of Pleadings
Rule 11(a)
Signature
Rule 11(b)
Certification
Rule 11(c)
General Sanctions
Rule 12
Defendant’s Response
Rule 12(b)
Motions to Dismiss
(Defenses)
“allegations must have factual support so
that claim does not stop short of the line
between possibility and plausibility”
Demand for Relief
- Should grant relief entitled even if it is
more or through another means than
requested in the complaint
“Must assert a defense to each claim made in the
complaint”
Rule 8(b)(3) – specific denial
Rule 8(b)(5) – Deny Knowledge or
Information
- Rule 11(b)- DKI cannot be changed to
denial at a later date
Allegation is admitted if a responsive pleading does
not deny an allegation
Inconsistent or alternative claims or defenses are
allowed
Higher standard for these pleadings
“with particularity”
Heightened pleading standard
“with particularity”
Every pleading must come with caption stating
court’s name, title, file number, type of pleading,
and parties’ names
Every pleading, motion and other paper must be
signed by the attorney
By attorney signature – certify that they made
reasonable inquiries into the documents
“Court may impose an appropriate sanction on any
attorney limited to what suffices to deter repetition
of the conduct”
D can respond to pleading by motion or answer
MOTIONS
12(b)(1) – Lack of SMJ (raised at any time)
12(b)(2) – Lack of PJ (use it or lose it)
12(b)(3) – Improper venue (use it or lose it)
12(b)(4) – Insufficient Process (use it or lose it)
12(b)(5) – Insufficient service of process (docs not
properly served)(use it or lose it)
12(b)(6) – Failure to state a claim for which relief
can be granted
12(b)(7) – Failure to join a party under Rule 19
Rule 12(c)
Motion for Judgment on
the Pleadings
Rule 12(e)
Motion for a more
definite statement
Rule 12(f)
Motion to Strike
Rule 15(a)
Amendments before Trial
Rule 54(c) – only default judgments have to
match the ad damnum line in the pleadings
Rule 15(a) – can amend answer to add
affirmative defenses before trial
Must comply with Rule 11 – “reasonable under
the circumstances”
Fraud Pleadings – Stromillo
- Non-monetary directives
- Penalty to court
- Prof responsibility class
- Paying attorney’s fees
Must respond no later than 21 days after served
or risk default
Has 60 days to respond if formal service is
waived under Rule 4(d)
12(b)(6) – “if a claim is facially adequate then
court cannot dismiss the claim” (Neitzke v.
Williams)
Rule 12(b)(7) – indispensable party
Rule 12(d) – if matters outside the pleadings
are presented on 12(c) or 12(b)(6) motion, the
motion becomes a Rule 56 summary judgment
AMENDMENTS
Complaint can be amended once within 21 days of
serving Δ (Δ permission required)
Leave is given freely unless justice does not
require it:
- Prejudice
- Oversight
Rule 15(b)
Amendments during
Trial
Rule 15(c)
Relation Back
Rule 15(d)
Supplemental Pleadings
Rule
16(a)(1)/26(f)
Rule 26(d)
Rule 18(a)
Joinder in General
Rule 13(a)(1)
Compulsory
Counterclaim
Rule 13(a)(2)
Exception to Comp.
Counterclaim
Rule 13(b)
Permissive Counterclaim
Rule 13(c)
Counterclaim maturing
or acquired after
pleading
Rule 13(g)
Cross Claim
Convenience
Bad faith
Dilatory motive
Delay tactic
Court can grant continuance under Rule 15(b)(1)
Even if SOL has run, π can file new claim if there is
diversity if the claim arises out of the same T/O and
other party has notice that satisfied Rule 4(m)
May add any transaction, occurrence, or event that
happens after date of original pleading
PRE-TRIAL CONFERENCES
Judge meets with parties to establish discovery
schedule within 120 days of Δ being served
Order of deposition is determined at pre-trial
conference
JOINDER (CROSS-CLAIMS AND
COUNTERCLAIMS)
A party asserting claim may join as many claims as
it has against an opposing party
Must state counterclaim that arises out of the same
T/O and does not require adding another party over
whom the court cannot acquire jurisdiction
When action was commenced, the claim was subject
of another pending action or opposing party sued on
its claim that did not establish PJ over pleader
A claim that does not arise out of the same T/O as
the original claim (can be asserted her or at a later
time in new trial)
The court may permit a party to file a supplemental
pleading asserting a counterclaim that matured after
serving an earlier party
May state cross claim against a co-party if the claim
arises out of the same T/O
Must assess SMJ
Guarantees SMJ through supplemental
jurisdiction because of same T/O
- Unless it is a π’s counterclaim
(§1367(b))
*if not asserted here cannot be brought in
separate trial
THIS IS THE ONLY COMPULSORY
CLAIM IN THE WORLD
Must assess SMJ
Must assess SMJ
Guarantees SMJ through supplemental
jurisdiction because same T/O
Once cross claim is brought, that party is
subject to compulsory counter-claims
Must have one that arises out of the same T/O
and then can assert unrelated crossclaims also
Rule 13(h)
Adding Additional
parties through
counterclaim
Rule 14 Impleader
Even if no diversity by adding new party, could still
have supplemental jurisdiction but if no PJ then
cannot be compulsory counterclaim
Rule 24 Intervention
24(a)(2) Intervention of Right – intervening may be
harmed if they are not joined
When new party is directly liable to Δ if Δ is found
to be liable to π (indemnity or tort-feasors)
Rule 42(b) – Judge has discretion to pull
unrelated crossclaim into separate trial
See Rules 19 and 20
Must assess SMJ for 3rd party claim, but venue
does not matter (if diversity, Δ and 3PΔ have
to be diverse)
If Δ is found not liable, then 3PΔ off the hook
Can always write amicus brief if not granted
Rule 17(a)(1)
Real Party Interest
24(b)(2) Permissive Intervention – 1 common
question
PROPER PARTIES
An action must be prosecuted in the name of the real
party in interest
Up to discretion of court
Executor
Bailee
Guardian
Administrator
Trustee
Party authorized by statute
Look to state substantive law to define these
terms on case-by-case basis (Naghiu v.
Intercontinental)
Rule 19 Necessary or
Indispensable Parties
Rule 20(a)
Proper Parties
*who can be joined*
Rule 56
Summary Judgment
Rule 50(a)
Directed Verdict
Rule 50(a)(1)
Judgment as Matter of
Law (JMOL)
Rule 50(a)(2)
Rule 50(b)
Judgment not
withstanding Verdict
(JNOV)
Rule 51 Jury Change
JOINDER (PARTIES)
(a)(1)(A) cannot accord complete relief w/o A
(a)(1)(B)(1) A’s interest may be harmed if not
joined
(a)(1)(B)(2) A may subject Δ to multiple or
inconsistent obligations
19(b) factors – prejudice against parties, lessening
prejudice by protective provisions, etc, adequacy of
judgment without A, whether π would have
adequate remedy if action were dismissed for nonjoinder
Rule 20(a)(1)- π’s
- Claims must arise from same T/O and raise
at least one common question of law or fact
Rule 20(a)(2) – Δs
- Claims must arise from same T/O and raise
at least once common question of law or
fact
JUDGMENTS
There is no dispute about material element of fact
- Party must present clear and convincing
evidence to defeat a properly supported
motion for summary judgment (Anderson)
- If neither party can enter evidence on
single issue, Court will enter summary
judgment on single issue – partial summary
judgment (Celotex)
If Δ believes π has not proved case (has not
presented sufficient evidence from which a
reasonable fact finder could find her in favor) Δ can
move from JMOL Directed Verdict
If Δ believes there is no legally sufficient
evidentiary basis for a reasonable jury to find for
that party on an issue
Motion must specify judgment sought and the
law/facts that entitle the movant to the judgment
May combine with Rule 59 motion for a new trial
- Granted if verdict was against weight of
new evidence
Instructions to jury
- Substantive rules
- Standards for decision (burden of proof)
CLASS ACTIONS
3 steps
1) Must be necessary – uses tests
2) Is joinder feasible
3) If not feasible look at 19(b) factors
(not all inclusive)
-
Must have SMJ ( if new party ruins
diversity they cannot be added)
Entitled to full res judicata because it is “on the
merits”
Party cannot rely on pleadings but must enter
own Rule 56 evidence otherwise court will
likely grant summary judgment
56(d) if non-movant shows they cannot present
facts essential, court may allow time to obtain
affidavits or declarations or take discovery
Motion after π rests case
Motion after close of all evidence (before case)
Motion after the verdict ONLY if JMOL was
made at the close of all evidence and it is made
within 10 days of the verdict
Rule 23(a)
Requirements for
Certification
1.
2.
3.
4.
Numerosity – class is so numerous that
joinder is impracticable – no magic number
Commonality – questions of law or fact
common to the class (Walmart – only 1
question is sufficient)
Typicality – claims or defenses of
representative are typical of the class as a
whole
Representative must fairly and adequately
protect the interests of the class
SMJ – look to CAFA (minimum diversity and
5 million aggregate claim)
Second – look to named parties for diversity
Zahn – every class member must be over
75,000 amount in controversy BUT
Exxon Mobil – 1 named party over 75,000 is
enough
PJ – do not need to satisfy minimum contacts
for absentee class members (phillips v.
Schutts)
Venue – look only to named parties
Rule 23(b)
Types of Class Actions
Rule 23(c)(1)
Certification
Rule 23(c)(2)
Notice for class actions
(b)(1) prejudice class action
(b)(2) declaratory relief
(b)(3) class seeking damages
(b)(1) and (b)(2) class actions are given “appropriate
notice” – though not necessary
Erie – if state does not allow class actions, then
apply rule 23 unless the state rule is so clearly
substantive or intertwined with state law
(Shady Grove)
(b)(1)(A) – prejudice to the non-class party
(b)(1)(B) – prejudice to the members of the
class
23(c)(1)(C) - can be altered or amended
Only (b)(3) requires individual notice
(b)(3) – best notice that is practicable under the
circumstances, including individual notice to all
members who can be identified through reasonable
effort
Rule 23(e)
Settlement/dismissal
Rule 26(a)
Initial Disclosures
Rule 26(b)
Scope and Limitations of
Discovery
Rule 26(e)(1)
Rule 30
Oral Depositions
Court will consider – lawyer’s opinions,
amount in proportion to amount that could be
recovered at trial, any objections, attorney’s
fees in proportion to class recovery
DISCOVERY
Disclose certain facts at the outset of the discovery
that are commonly asked and answered
Must be relevant to a claim or defense
Exemptions from initial disclosure:
- Work product (unless you can show you
have substantial need for it and cannot get
them anywhere else. Rule 26(b)(3))
Obligation to supplement information if you learn
that a response was incomplete or inaccurate when
you made it
30(c)(2) – counsel ay object to questions posed by
opposing counsel but that does not preclude witness
from having to answer the question
Rule 45 – nonparties can be depose upon
notice and subpoena
(b)(1) – notice shall be reasonable (10 days
prior)
(b)(3) and (b)(4) – audio/video/telephone
deposition is allowed
Rule 32(a)(1) – deposition at trial is not
objectionable on hearsay grounds
Rule 31
Written Depositions
Rule 33
Interrogatories
Rule 34
Document Demands
(b)(2) – Written answers must be provided within 30
days
(d) – can open records and let opposing party dig for
needle in the haystack
(b)(2) must provide docs within 30 days
Usually made in conjunction with Rule 34
document requests
Rule 45: Documents can be sought from nonparties
(a)(1)(A): “document” any data compilation from
which information can be obtained
(b)(2)(E): must be produced in the manner they are
kept in the usual course of business
Rule 35
Physical and Medical
Exams
Rule 36
Requests for Admissions
Rule 37
Sanctions
Rule 22
Interpleader
Rule 64
QIR Jurisdiction (Quasi
in Rem)
Need a court order
Authenticate documents to become evidence at trial
instead of holding deposition every time a new
document comes into play
(a): motion to compel attorney’s fees
(b): failure to comply with court order
ETC.
- Need complete diversity
- Does not confer SMJ
- Minimum 75,000.01 amount in controversy
- Regular Venue Rules
- Regular Service Rules
Federal courts use the attachment rules of the state
in which they sit
37(a)(4): evasive, incomplete disclosure,
answer, or response must be treated as a failure
to disclose answer or respond
4(n)(2) – the Δ can be served in the same as in
state law for QIR