CIVIL PROCEDURE 2001
Class 6
September 6, 2001
Professor Fischer
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))
Rules on consolidation and waiver for preanswer motions in Rule 12(g) and (h)
Wrap-Up of Last Class
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We learned about notice pleading under FRCP
8(a)
We learned how to read rules and statutes
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))?
HYPO
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Bella believes that Scout is liable to her in
negligence. Bella gets her attorney, Finn, to draft a
complaint. Bella learns on a Sunday that Scout is
departing on Sunday for to Antarctica for three
months. She tells Finn. Finn sends a process
server, Penny, to the airport where she personally
serves Scout with a copy of the complaint she
plans to file, and a summons. First thing Monday
morning, Finn files the complaint with the federal
court for the district of Anystate. Is service of
process proper under the FRCP?
ANOTHER HYPO
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Now Bella wants to sue Paige. She properly
files a complaint with the federal district court
and, six days later, serves the complaint by
delivering a copy of it plus the summons to
Paige’s attorney, Caroline.
Is service proper under the federal rules? Why
or why not? Do you need additional
information to answer? If so, what?
YET ANOTHER HYPO
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Sharon files her complaint against Nigel with the
Federal Court for the District of Massachusetts.
118 days later she is heading for Nigel’s house
when she is hit by a giant SUV and left in a coma
for three days. Nigel finds out from a mutual friend
that Sharon filed the complaint. The friend tells
Nigel exactly what Sharon’s claim is against him.
You are the judge. Should you dismiss Sharon’s
case 122 days after filing? Why or why not?
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
The governing provision is FRCP 4(d). You
should be familiar with it.
WAIVER OF SERVICE
RULE 4(d)
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HOW DOES P REQUEST A WAIVER OF
SERVICE?
WAIVER OF SERVICE
RULE 4(d)
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HOW DOES P REQUEST A WAIVER OF
SERVICE?
P sends D the complaint, 2 copies of a
notice of the action, and a request that the
D waive formal service of the summons and
complaint upon him. If D returns the
request, that waives formal service.
INCENTIVES TO WAIVE SERVICE
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The FRCP contain some incentives for
individuals and corporations to waive service.
What are these?
INCENTIVES TO WAIVE SERVICE
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1. Duty on D to avoid unnecessary costs of
service (4(d)(2))
2. Costs 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)
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
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)
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)
Rule 12(b)(6) motion
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What is the purpose of a Rule 12(b)(6) motion?
Rule 12(b)(6) motion
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What is the purpose of a Rule 12(b)(6) motion?
Issue: is P’s claim legally sufficient?
Rule 12(b)(6) motions
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Judges consider motion based ONLY on the
complaint, not other material
What presumptions does the court make on a
Rule 12(b)(6) motion?
Rule 12(b)(6) motions
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What presumptions does the court make on a
Rule 12(b)(6) motion?
Judges assume that all pleaded facts in the
complaint are true, resolving doubts in
pleader’s favor
FRCP (and its scheme of notice pleading)
create a powerful presumption against
dismissing pleadings on 12(b)(6) motion
Presumption Against Dismissal on
12(b)(6) Motion
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Even if P’s stated legal theories are not
cognizable, 12(b)(6) motions will fail if there are
other tenable legal theories apparent from the
face of the complaint
Judges are quite liberal in granting
amendments to complaints where they can be
altered to remedy the failure to disclose a
cause of action
Rule 12(e) Motions
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How does a Rule 12(e) motion differ from a
Rule 12(b)(6) motion?
Rule 12(e) Motions
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How does a Rule 12(e) motion differ from a
Rule 12(b)(6) motion?
A rule 12(e) motion is a motion for a more
definite statement on the basis that a pleading
is so vague or ambiguous that D can’t respond
to it.
Unlike Rule 12(b)(6) motions, Rule 12(e)
motions can attack pleadings that state
cognizable legal claims
Are 12(e) motions granted
frequently?
Are 12(e) motions granted
frequently?
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Notice pleading requirements mean that Rule
12(e) motions are granted rarely.
Rule 12(e) motions can’t be used as a
discovery tool
Rule 9(b) Motion
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What is a 9(b) motion?
Rule 9(b) Motion
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What is a 9(b) motion? A motion alleging that a
party has not met its requirement to plead
fraud or mistake with particularity.
Note tension between 8(a) and 9(b)
Bower v. Weisman
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Sachiko Bower
Frederick Weisman
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?
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?
Bower v. Weisman
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Why, if the governing rule of pleading is “notice
pleading”, does the trial judge look at each
count in so much detail, going count by count
and considering what facts were alleged for
each element? Isn’t this at odds with the
holding of Conley v. Gibson?
Rule 12(b)(6) motion
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D can win if D can persuade the judge that
A. No legally cognizable cause of action
exists
B. OR legally cognizable cause of action
but P does not state sufficient information
to suggest that P has this cause of action
C. OR legally cognizable cause of action
and specific facts pleaded, but even if those
facts are true, they don’t give rise to the
alleged cause of action.
Rule 12(b)(6) motion in Carpenter v.
Dee
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Practice Exercise No. 7
What arguments might Nancy Carter make in
response to the motion? How do you think the
judge should rule on the motion? Why?
Rule 12(e) motion in Carpenter v.
Dee
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Practice Exercise No. 7
What arguments might Nancy Carter make in
response to the motion? How do you think the
judge should rule on the motion? Why?
Other 12(b) motions
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Other than 12(b)(6), what are the other motions
to dismiss under Rule 12(b)?
Can only a Defendant make these motions?
Other 12(b) motions
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Other than 12(b)(6), what are the other motions to
dismiss under Rule 12(b)?
12(b)(1)- no subject matter jurisdiction
12(b)(2) – no personal jurisdiction
12(b)(3) – improper venue
12(b)(4) - insufficiency of process
12(b)(5) – insufficiency of service of process
12(b)(7) – failure to join a party under FRCP 19
Can they be made only by defendant? No – also by
plaintiff in response to counterclaim
Timing of 12(b) motions
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Must a D make a 12(b) motion?
When should D make a 12(b) motion?
How does D make a 12(b) motion?
If D makes a 12(b) motion, must D still answer
within the required period for serving the
answer under the FRCP? [review question:
what is that period?]
DANGER OF WAIVER
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Right to make pre-answer motions may be
waived if D does not follow the requirements in
Rule 12
THIS IS AN AREA WHERE IT IS EASY FOR
LAWYERS TO MAKE MISTAKES WITH
SERIOUS CONSEQUENCES, SO PAY
ATTENTION CAREFULLY!
USE IT OR LOSE IT
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FRCP Rule 12(g), 12(h)
Which types of 12(b) defenses can be waived?
How can a D lose the right to make these 12(b)
defenses?
Subject Matter Jurisdiction
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What does Rule 12(h)(3) provide?
Why do you think that subject matter
jurisdiction receives this special treatment
under the FRCP?
Early Determination of 12(b)
Defenses
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See Rule 12(d)
Why do the FRCPs encourage the early
determination of the 12(b) defenses?
HYPO
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Pooh is served with a complaint in a federal
civil action brought by Piglet. Pooh makes a
pre-trial 12(b)(2) motion for lack of personal
jurisdiction, and loses. In preparing his
Answer, Pooh wants to include a defense that
service of process was invalid under the FRCP
because it was made by first-class mail.
Please advise Pooh as to whether he can
include this defense in his answer.
ANOTHER HYPO
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Pooh is served with a complaint in a federal
civil action brought by Piglet. Pooh makes a
pre-trial 12(b)(2) motion for lack of personal
jurisdiction and loses. In preparing his Answer,
Pooh wants to include a defense that the court
has no subject matter jurisdiction. Please
advise Pooh on whether he can include this
defense in his Answer.
JAWS HYPO
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Mary is the mother of Sam, a young swimmer who
was eaten by a shark while swimming at Duck town
beach off the Outer Banks. Mary sues the Mayor
of Duck in a North Carolina federal district court for
wrongful death based on negligent failure to install
and maintain shark nets. The Mayor makes a pretrial motion for lack of personal jurisdiction and
loses. His attorney advises him to make another
motion for failure to state a claim under Rule
12(b)(6). Procedurally, is this good advice? Why or
why not?
Summary: What You Should Have
Learned Today
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You should be familiar with the procedure for and advantages
of waiving service under FRCP 4(d)
You should know what a motion is (see Rule 7(b))
You should understand how and why a party makes a pre-trial
motion to dismiss under FRCP 12(b)
You should understand how and why a party makes a motion
under FRCP 9(a) and 12(e)
You should understand what the moving party must prove to
succeed on a Rule 12(b)(6), Rule 9(a), and 12(e) motion.
You should understand the effect of the consolidation and
waiver provisions in FRCP 12(g) and (h)