CIVIL PROCEDURE 2002
Class 8
September 13, 2002
Professor Fischer
Wrap-Up of Last Class
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We studied the requirements for service of
process under FRCP 4: who may serve (4(c )),
what documents? (4(c )), how to serve
individuals (4(e)), how to serve corporations
(4(h)), when must you serve? (4(m))?
What Will We Learn Today?
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Wrap-up of last class
Procedure for waiver of service under FRCP
4(d); incentives for waiving service
Pre-answer motions under Rule 12(b). We will
focus on motion to discuss for failure to state a
claim (12(b)(6)) and motion for a more definite
statement (12(e))
Pleading requirements for fraud claims (9(b))
HYPO
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Jane, the owner of a Ford Explorer that rolled over
in an accident, wants to bring a products liability
lawsuit against the Ford Motor Company. She files
a complaint in U.S. District Court for the Eastern
District of Michigan. Can she properly serve the
complaint by mailing it to Ford Motor Company
headquarters in Dearborn, Michigan?
Can she properly serve by delivering the complaint
to William C. Ford, Ford’s chairman?
WAIVER OF SERVICE
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What’s waiver of service?
What provision of the FRCP governs waiver
of service?
WAIVER OF SERVICE
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Waiver is a way of notifying the D of the
action while waiving formal service
It’s part of the ‘how’ question
The governing provision is FRCP 4(d). You
should be familiar with it.
2 important questions: (1) HOW do you
waive? (2) WHY waive service?
WAIVER OF SERVICE
RULE 4(d): HOW
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HOW DOES P REQUEST A WAIVER OF
SERVICE?
WAIVER OF SERVICE
RULE 4(d): HOW
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HOW DOES P REQUEST A WAIVER OF SERVICE?
P sends D by “reliable means” copy complaint, 2
copies of a notice & request for waiver form
containing specified information about the action
and date of waiver request/due date for waiver
(must be at least 30 days if D in US);a request that
the D waive formal service of the summons and
complaint upon him; prepaid means to respond. If
D returns the request, that waives formal service.
See forms in online FRCP at
http://www.law.cornell.edu/rules/frcp/overview.htm
INCENTIVES TO WAIVE SERVICE: THE
WHY
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The FRCP contain some incentives for
individuals and corporations to waive service.
What are these?
INCENTIVES TO WAIVE SERVICE: THE
WHY
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1. Duty on D to avoid unnecessary costs of
service (4(d)(2))
2. Costs of serving D can be imposed on D
if refuses to waive w/o good cause (4(d)(2)
and 4(d)(5))
3. If D waives, she has additional time to
answer (60 days after date waiver request
sent if D is in the U.S.) (4(d)(3) and 12(a))
PROOF OF SERVICE
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What is proof of service?
Which provision of the FRCP governs proof of
service?
Is it required if service is waived?
PROOF OF SERVICE
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What is proof of service? Proof to the court,
usually by affidavit of the process server, that
service has been effected. Failure to do so doesn’t
invalidate service.
Which provision of the FRCP governs proof of
service? Rule 4(l)
Is it required if service is waived? No. See 4(d)(4)
For a proof of service form for the U.S. District
Court for the Central District of California, see:
http://www.cacd.uscourts.gov/cacd/forms.nsf/0b2b
50f03ce1d589882567c80058610a/8f448f69c6703589
882568190072f625/$FILE/Cv-01.pdf
RELATIONSHIP OF JURISDICTION &
VENUE TO SERVICE
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Even if D has been validly served under
FRCP 4, the court cannot hear the action
unless it has personal jurisdiction over the
D, subject matter jurisdiction over the
dispute and proper venue
The attorney should consider the issue of
jurisdiction and venue before serving a D,
but we’ll learn about these requirements
later.
SUMMARY OF FEDERAL REQUIREMENTS
FOR SERVICE OF PROCESS
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You should know:
1. What service of process is, and what is the
purpose for service.
2. Requirements for TIME, DOCUMENTS,
IDENTITY OF PROCESS SERVER, MANNER
OF SERVICE for individuals and corporations
and WAIVER OF SERVICE
Procedure After service of process
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What should the defendant do after being
served with process or waiving service of
process?
After service of process
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1. Check time limits for answer
2. Decide whether to make a pre-answer
motion (e.g. 12(b)(6), 12(e))
3. If no motion will be made, determine
whether you need an extension of time to
answer. If so, try to get P’s consent, but still
safest to move the court to grant an extension.
Usually courts are reasonable about this.
What’s a Motion?
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What provision of the FRCP governs motions
in general?
What’s a Motion?
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A motion is an application to the court for an
order
What provision of the FRCP governs motions
in general? Rule 7(b)
Requirements for Motions
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Motions must be made in writing unless presented
in hearing/trial (formal requirements set out in
FRCP 10) 7(b)(1) and (2)
Must set out the grounds for the motion and what
order is sought (FRCP 7(b)(1))
Motions must be signed by party’s lawyer or
unrepresented party (FRCP 7(b)(3), 11). Pleadings
also have to be signed.,
Usually motions include: notice of motion, legal
memorandum (brief) and supporting exhibit(s)
and/or affidavit(s)
READ 7(b) for next class
Importance of Local Rules/Judges
Rules
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It is very important to check both local district
court rules and individual judge’s rules governing
motion practice.
For an example, see Local Rules for the U.S.
District Court for the Southern/Eastern District of
New York at:
http://www.nysd.uscourts.gov/rules/rules.htm and
see judges page at:
http://www.nysd.uscourts.gov/judges.htm (for
individual practices of each judge, click on
individual judge’s name)
Questions for Pre-answer motions
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When can you make a pre-answer motion?
What possible pre-answer motions can be
made?
What is the burden of proof required to
succeed on a pre-answer motion?
Bower v. Weisman (CB p. 210)
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The parties:
Sachiko Bower
Frederick Weisman
Who is the plaintiff?
Defendant? What court
are we in?
Bower v. Weisman
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What procedural state has this action reached?
What is the substantive law dispute in this
action?
Bower v. Weisman
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What legal arguments does Weisman make in
support of his pre-answer motions?
Bower v. Weisman
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What legal arguments does Weisman make?
1. Weisman is entitled to a more definite statement
under Rule 12(e) of specific provisions of
agreement and also which D is charged with which
act
2. Bower’s claim for fraud, mispresentation and
deceit should be dismissed under 9(b)
3. Bower’s claim for trespass, false imprisonment,
intentional infliction of emotional distress and
private nuisance should be dismissed under Rule
12(b)(6) for failure to state a cause of action
Bower v. Weisman
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What legal arguments does Bower make?
Bower v. Weisman
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How does Judge Sweet rule on the 12(e)
motion? What is his legal reasoning?
Bower v. Weisman
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How does Judge Sweet rule on the 9(b)
motion? What is his legal reasoning?
Bower v. Weisman
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How does Judge Sweet rule on the
12(b)(6)motion? What is his legal reasoning?