NOTICE � SERVICE OF PROCESS by EQ7Al75w

VIEWS: 8 PAGES: 11

									                                        NOTICE – SERVICE OF PROCESS
 o The fundamental requirement of due process of law is the opportunity to be heard.
 o Constitutional Requirement for Notice (Mullane):
        Notice reasonably calculated under all the circumstances to inform interested parties of
           pending action and to afford them the opportunity to present their objection.
        Notice reasonably calculated to reach most of the people is sufficient; doesn’t have to reach all
           of them [in the case of a shared interest: reach most parties].
o Statutory Requirements for Notice (Rule 4, SERVICE OF PROCESS):
        Service under Rule 4 is always constitutional even if D does not get notice. It is necessary
           b/c DPCFA requires that D have notice that a suit has been brought against him.
        (c)(1): Process = (1) summons with (2) a copy of complaint.
        (a): Summons: signed by the clerk, bear the seal of the court, identify the court and the
           parties, be directed to the D, and state the name and address of the P’s attorney or, if
           unrepresented, of the P.
        (m): Service of process must be effected w/in 120 days after filing the complaint. If not
           effected, the court, upon motion or sua sponte after notice to the P, shall dismiss w/o prejudice
           as to the D or direct that service be effected w/in a specified period; provided P shows good
           cause for failure of service, court shall extend the time for service for an appropriate period.
        (c)(2): may be effected by anyone not a party who is AT LEAST 18 yrs. old.
        (e) SERVICE OF PROCESS OF INDIVIDUAL W/IN US:
                 (1): Pursuant to State statute (either State of service, or State of Dist. Ct. location)
                 (2): Personal Service: delivering notice to person, or
                 (2): Substituted Service: leaving notice w/ (1) person of suitable age and discretion
                    who resides at D’s dwelling house or usual place of abode.
                 (2): Agent Service: delivering a copy to an agent authorized (by appointment) by law
                    to receive summons.
                 National Dev. Co. v. Triad Holding Corp.
                         o A D can have more than one “dwelling house”
                         o When a D spends his time at different “dwelling houses,” it is proper to serve
                             D at the one in which he’s currently living.
                 (h)(1) SERVICE ON CORPORATION:
                         o as prescribed by state law in (4)(e)(1), or
                         o by delivering a copy of summons & complaint to officer, managing agent, or
                             another agent authorized by appointment or law to receive service of process.
                                  Who is a managing or general agent (duties, decision-making power)?
                 (k) TERRITORIAL LIMITS OF EFFECTIVE SERVICE:
                         o (1) Service of summons/filling a waiver establishes in personam PJ over D
                                  (A) who could be subjected to the jurisdiction of a court of general
  PJ State Ct = PJ Fed Ct.           jurisdiction in the state in which the Dist. Ct. is located, or
                                  (B) who is a party under Rules 14 or 19 and is served at a place w/in a
                                      judicial district and not more than 100 miles from the court from
                                      which the summons issues (Bulge Rule doesn’t allow regular D,
                                      ONLY those joined!)
                                  (D) when authorized by a U.S. statute
                 (d) WAIVER OF SERVICE:
                         o (1) by waiving service, D doesn’t waive any objection to venue or jurisdiction
                         o (2) P must notify D of commencement of action & request that D waive
                             service of summons. The notice and request:
                                  (A) shall be in writing and addressed directly to D
                                  (B) shall be sent by 1st class mail or other reliable means



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                                     (C) shall be accompanied by a copy of the complaint & ID the court
                                      in which it’s filed
                                  (E) shall set forth the date on which the request was sent
                                  (F) D has at least 30 days (60 if D addressed outside of US) from the
                                      date the request was sent to return the waiver.
                                  (G) shall provide D w/ an extra copy & prepaid means of compliance
                                      (probably makes fax insufficient)
                         o (3) D’s timely return of the waiver prior to service extends D’s time to serve
                             an answer from 20 days [12(a)(1)(A)] to 60 days (90 if D addressed outside
                             of US).
                         o (4) P must file waiver of service after D has returned it. Upon filing, the
                             action shall proceed as if a process was served at the time of filing the waiver
                             and proof of service isn’t required.
                         o (5) D’s non-acceptance of wavier requires him to pay the cost of service
                             himself.
                   (l) PROOF OF SERVICE: person effecting service must make proof of it to the court, but
                    a failure to make such proof does not affect the validity of service.
                   Immunity from service where D comes into State to participate in another suit, or
                    where P induces D into State through fraud or deceit.

                                        SUBJECT MATTER JURISDICTION
o   In which court system can the P file the suit; it cannot be waived.
o   3 bases for SMJ, none of which D can waive: (1) diversity of citizenship § 1332(a)(1), (2) alienage §
    1332(a)(2), (3) federal Q § 1331.
o   St. Ct. has general SMJ (narrow exception for cases that can only go to Fed. Ct.)
o   Fed. Courts have limited subject matter jurisdiction.
o   Art. III, Sec. 2, i names the kinds of cases that may go Fed. Ct.:
         cases arising under federal law.
         cases affecting Ambassadors or Public Ministers
         maritime jurisdiction
         controversies to which the US is a party
         controversies between two or more States
         controversies between a State and a citizen of another State (11th Amendment killed this)
         controversies between citizens of different States.
         controversies between citizens of the same State dealing with a claim to land in another State
         State or citizen of State is a party against a citizen of another country.
o   A statute must allow a federal court to hear a case, even if it is constitutional.
o   Supplemental Jurisdiction: A party may add a claim that does NOT independently invoke SMJ if
         (1) the original claim invokes SMJ –AND-
         (2) the additional claim arises out of the same T/O or nucleus of events as the first claim.

Diversity of Citizenship – §1332
o   The district courts shall have original jurisdiction of all civil actions where the matter in controversy
    exceeds $75K (policy: feds are not small claims court) b/w citizens of different States §133(a)(1).
         unless there’s a legal certainty that P’s damage cannot be the amount prayed for, whatever
            they claim governs.
o   The district courts shall have original jurisdiction of all civil actions…b/w citizens of a State and
    subjects or citizens of foreign states §1332(a)(2).
o   Aggregation: combination of two or more claim to meet the amount in controversy requirement.
         Where there is one P & one D, we may aggregate as many claims as we want, regardless of
            the interrelatedness of the individual claims.


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          Where there is 2 or more P and/or 2 or more D, we may NOT aggregate claims.
          Where there is 2 or more D and ONLY ONE CLAIM, there is not aggregation. Even though
           there are multiple D, joint liability allows an award from any one D or from all D.
o   Where P sues for equitable relief [behavior modification b/c $ damages wouldn’t make P whole] the
    amount in controversy is either (1) P viewpoint test-is P’s harm by D’s behavior worth more than
    $75,000?, or (2) D viewpoint test-will D’s behavior modification cost him more than $75K?.
         Most courts try both and will use either to satisfy the amount in controversy.
o   Complete Diversity Rule – all Ps must be of diverse citizenship from all Ds at time of filing.
         FRCP does NOT mention it (judicial interpretation; serves as docket control)
         Citizenship for Individuals (Mas v. Perry):
                 A citizen of a State must be:
                         o citizen of the US, and
                         o domiciliary of the State
                 A person’s domicile is the State where:
                         o Person’s home is physically located, and
                         o Person has the mental intent to make their permanent home
                         o Person’s domicile is that of her parents until she changes it. ONLY ONE.
                         o A person can reside in one state (present there) but still have the domicile of
                             another if the person has not decided to make the other his permanent home.
                 Foreigners admitted to the US for permanent residence [those with green cards]
                    are citizens of the State in which they are domiciled [§1332(4)].
         Citizenship of Corporations (§ 1332(c)(1))
                 State of incorporation, and
                 State of PPB
                         o When considering a corporation whose operations are far flung, the sole nerve
                             center of that corporation is more significant in determining PPB,
                         o When the corporation has its sole operation in one State and executive offices
                             in another, the place of activity is more significant, but
                         o When the activity of a corporation is passive & the ‘brain’ is located in
                             another state, the situs of the ‘brain’ is more significant
         Citizenship of Unincorporated Entities (§ 1332(C)(1))
                 The entity is a citizen of every State in which its members are citizens.
                 National Unions are good examples. B/c they have members who are citizens of every
                    state, they are immune from suit predicated on diversity.
         Citizenship of Representatives ( § 1332(C)(2)) – MAY BE POOR DRAFTING SINCE ‘STATE’ IN
           THE STATUTE PERTAINS ONLY TO US STATES AND NOT FOREIGN STATES.
                 Concerning a decedent’s estate, relevant State of citizenship is that of the decedent
                    NOT the legal representative’s.
                 Concerning infants/incompetents, relevant State of citizenship is that of the infant
                    NOT the legal representative’s.
         Collusion [§ 1359]
                 NO jurisdiction over a D in a suit where the assignees collude.
                 Does not prohibit the assignment. It only ignores it for purposes of est. diversity.
                         o Court determines whether consideration for the assignment exists, or if the
                             assignee is a mere collection agent. If the latter, citizenship of original party
                             controlling.
                         o Not collusive where 3rd party: (1) is paid, or (2) has a stake in the claim.
                         o Inapplicable to P changing citizenship (by changing domicile) b/c it takes two
                             to collude.




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Federal Question (FQ) - §1331
o   NO AMOUNT OF CONROVERSY NEEDED!!
o   The Dist. Ct. has original jurisdiction over all civil actions arising under federal law.
o   Well-pleaded complaint rule – FQ must arise from the claim; not anticipated defenses. (Mottley).
        Examines the complaint NOT any other extraneous matter or surplus language (i.e.,
           anticipatory responses/defenses)
        Not enough for P to mention federal law. Question: Is P vindicating a federal right?
                 Permits determination of propriety of case in Dist. Ct. from outset.
                 Serves as docket control

                                 REMOVAL JURISDICTION § 1441, 1446, 1447
o   COULD P HAVE BROUGHT THE CLAIM IN FEDERAL COURT ORIGINIALLY (SMJ)?
o   All Ds must agree to remove (take case from St. Trial Ct. to Fed. Dist. Ct.)
o   The Dist. Ct. to which a case is removed is ALWAYS the proper venue for that case.
o   § 1441 Actions Removable Generally
         Only D may remove (gives the D a say in forum selection)
         Must be SMJ
                 (b): If based on FQ, then removed w/o regard to the parties’ citizenships/residences
                 (b): If based on diversity, then removed only if none of the Ds is a citizen of the
                     State in which the action was brought.
                         o The underlying theory of the diversity of citizenship is that it is designed to
                              prevent local bias, yet this is the type of case that needs to be in Fed. Ct. when
                              there are multiple D and one is from the forum and the other is not.
         (c): Where a removable FQ claim is joined w/ a claim that was not removable (no SMJ), D
           may remove the entire action allowing Dist. Ct. to determine all issues, or Ct. may remand all
           matters in which State law predominates.

o   § 1446 Procedure for Removal
         D doesn’t have to ask for permission to remove the case, he just removes it. Wrongly removed
           cases are remanded to St. Ct. upon discovery of lack of SMJ.
         (a) Notice of removal includes:
                Signature pursuant to Rule 11
                Short plain statement of grounds for removal
                Copy of service of process on D.
         (b) D must fill the notice for removal w/in 30 days after P serves him w/ the document from
           which D first ascertains that the case is removable.
                If diversity case, then the case cannot be removed after one year, regardless of when D
                   becomes aware that it is removable.
                       o Where P dismisses a D which introduces diversity b/w remaining D and P, the
                            case becomes removable (upon service of dismissal), but 1 year limit applies.
                       o Where the Ct. dismisses a D which then introduces diversity b/w remaining D
                            & P, case in NOT removable b/c D can appeal this dismissal (not P’s).
         (c)(5): Where it doesn’t appear on the face of the removal documents that the Dist. Ct. enjoys
           SMJ, and therefore, can not summarily remand the case, it must hold an evidentiary hearing.
         (d): promptly after the filing of a notice of removal D shall give written notice to all adverse
           parties & shall file a copy of the notice with the clerk of the State court, which shall effect
           removal & divest the St. Ct. of jurisdiction (unless and until the case is remanded).
         Removal has its own venue rule (not §1391) – ONLY removable to dist. embracing St. Ct.
         Where the original complaint was removable, but D failed to remove, amend. to the complaint
           doesn’t make case removable again, UNLESS amend. brings forth a new basis for jurisdiction.



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o   § 1447 Procedure After Removal Generally
         A motion to remand the case on the basis of any defect other than lack of SMJ must be made
           w/in 30 days after the filing of the notice of removal.
         (c) If at anytime before final judgment it appears that the Dist. Ct. lacks SMJ, remand required
         (e) If after removal the P seeks to join additional defendants whose joinder would destroy
           SMJ, the court may deny joinder or permit joinder and remand the action to the State cour.
         (d) An order remanding a case to the State court from which it was removed is not reviewable
           on appeal or otherwise. EXCEPT if it is a civil rights case.

                                                VENUE - § 1391
o   Residence is controlling in venue, but courts interpret this to mean domicile.
         Individual citizens “reside” where they are domiciled
         Aliens may be sued in any district [§1391(d)]
         Corporations “reside” in any judicial district in which it is subject to PJ.
                  Where State has more than one district, then only in the district w/in which its
                     contacts would be sufficient to PJ if the district were a separate State. If no such State
                     exists, then whichever district in which its contacts are most significant [1391(c)].
o   Statutory creation that dictates which court in the system we are in.
         Does not apply to removed cases
o   Local vs. Transitory Actions
         Local: venue must be where the land is (§1391 DOESN’T APPLY):
                  In-rem, quasi-in-rem (real property jurisdictional predicate)
                  Sought after remedy concerns realty (foreclosure, enforcement/removal of lien)
                  Claim concerns injury to land (trespass).
         Transitory: everything that’s NOT local (§1391 APPLIES)
o   Venue for DIVERSITY cases is appropriate where: [§1391(a) – “founded solely on diversity”]
         (1) a judicial district where any D resides, if all D reside in the same State.
         (2) a judicial district in which a substantial part of the events or omissions giving rise to the
            claim occurred, or property that is subject to the action is situated.
                  Where did the injury occur? Where was the injurious object made? Where was the
                     letter written; sent; opened?
         (3) if there is no district which the action may otherwise be brought, in a district where any D
            is subject to personal jurisdiction.
                  (a)(3) only relevant where no district meets requirements of (a)(1-2). Thus, we do not
                     discuss them until we demonstrate that the requirements are not met.
o   Venue for FQ & HYBRID cases is appropriate where: [§1391(b) – “not founded solely on diversity”]
         (1) a judicial district where any D resides, if all D reside in the same State.
         (2) a judicial district in which a substantial part of the events or omissions giving rise to the
            claim occurred, or property that is subject to the action is situated.
                  Where did the injury occur? Where was the injurious object made? Where was the
                     letter written; sent; opened?
         (3) if there is no district which the action may otherwise be brought, in a district where any D
            is subject to personal jurisdiction.
                  (b)(3) only relevant where no district meets requirements of (b)(1-2). Thus, we do not
                     discuss them until we demonstrate that the requirements are not met.
o   CHANGE OF VENUE: TRANSFERS – §1404, 1406
         Types of transfers:
                  §1404 – T-or court proper venue. Transfer executed (1) for the convenience of the
                     parties and witnesses, (2) in the interest of justice.
                  §1406 – T-or court improper venue. Transfer done (1) in the interest of justice, & (2)
                     sent: (a) to a court where P could have brought the cases originally, or (b) dismissed.

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         Convenience of the parties determined by looking at public and private factors (see FNC).
         Transfer can only occur intra-system.
         Court can only transfer to a court where (1) venue and (2) PJ are proper. [Hoffman]
         A court can execute either transfer even though it lacks PJ. [Goldlawr]
               1404 Goldlawr possible in removed cases where State lacks PJ and D removes to Fed.
                  Ct. instead of moving to dismiss. [Venue proper, but no PJ b/c Fed. PJ = State PJ]
       Choice of Law Rules:
               1404: Choice of law rules of the State embracing the T-or follow case to T-ee,
                  UNLESS it is a 1404 Goldlawr (where T-or lacks PJ).
                       o In non-Goldlawr1404 transfers venue and PJ are OK, and the move is only a
                           change of courtroom.
               1406: Choice of law rules of State embracing T-or Ct do NOT follow. Only the rules
                  of the T-ee’s State are relevant. Venue was improper, so it would be inappropriate to
                  allow it to exert its laws over D.
                   Status of                                                        Van Dusen
        Statute                       T-ee Ct.           Goldlawr Apply?
                    T-or Ct                                                            Apply?
                     Proper                                                        YES, for non-
       §1404(a)
                     Venue      Hoffman – Venue                                   Goldlawr transfer
                                                                YES
                   Improper          & PJ OK
       §1406(a)                                                                          NO
                     Venue
o   CHANGE OF VENUE: FORUM NON CONVENIENS (FNC)
       A doctrine of dismissal (NOT of transfer) a court employs when the more appropriate court is
          one to which the court cannot transfer [Piper Aircraft v. Reynolds].
               Usually applied when ‘better’ venue is outside both federal & state systems (foreign)
               Won’t dismiss where “the remedy provided by the alternative forum is so clearly
                  inadequate or unsatisfactory that it is no remedy at all” (unlikely to invoke this
                  standard b/c it would tacitly insult the judiciaries of other countries).
       Court may condition dismissal on D’s waiver of the other forums defenses (i.e. SoL, PJ)
       The court examines (1) Private Factors and (2) Public Factors to determine the appropriateness
          of dismissal [showing must be stronger than for transfer].
               Private Factors:
                       o Relative ease to source of proof
                       o Ability of court to exert control over witnesses (subpoena)
                       o View of premises
                       o All other practical problems that make trial easy, expeditious, inexpensive.
               Public Factors:
                       o Administrative difficulties flowing from court congestion
                       o Local bias
                       o Interest in having trial held in same place of governing law
                       o Avoidance of unnecessary conflict-of-law problems
                       o Burdening citizens in an unrelated forum w/ jury duty.

                                  FRCP12 - DEFENSES AND OBJECTIONS
o   D shall serve an answer w/in 20 days after being served w/ process (w/in 60 days if D has waived
    service) [12(a)(1)(A)].
         Except D has the option to raise the 12(b) defenses by motion before serving an answer.
                 If motion is granted, then it is unnecessary for D to serve an answer (case dismissed).
                 If motion is denied, then D has 10 days after denial to serve an answer [12(a)(4)(A)].
         In the first 12(b) response (answer or motion), D must include all available waivable defenses.
                 Ability to join multiple defenses eliminates the need of Special Appearance in Fed. Ct.
                 Failure to include them constitutes a waiver of those defenses:

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                         o   Waived if not included in first 12(b) motion – 12(g)
                         o   Waived if not included in first 12(b) answer – 12(h)
o   12(b) Defenses:
         Waivable
                 Lack of PJ [12(b)(2)]
                 Improper venue [12(b)(3)]
                 Insufficiency of process [12(b)(4)]
                 Insufficiency of service of process [12(b)(5)]
         Non-waivable
                 Lack of SMJ [12(b)(1)]
                         o D can raise SMJ for the first time on appeal
                         o D can only litigate SMJ once; if he loses then cannot challenge it again
                         o Cannot attack SMJ collaterally.
                 Failure to state a claim upon which relief can be granted [12(b)(6)]
                 Failure to join an indispensable party [12(b)(7)]
o   Direct v. Collateral Attack (mutually exclusive strategies):
         Collateral: D accepts default judgment in 1st case & asserts lack of PJ in 2nd (FFC) case.
         Direct: D makes a special appearance to assert lack of PJ (and only that defense)
                 If D loses, must be prepared to stay and litigate.

                              PLEADINGS AND JUDGMENTS BASED ON PLEADINGS
o   The purpose of pleadings is to put D on notice of an action against it.
o   In general the burden of pleading is the same as the burden of proof. Where A, B, C, D & E (elements
    of claim) are true P wins, UNLESS X, Y or Z (affirmative defenses) are true, then P pleads A-E and D
    pleads X-Z.
          Exceptions: (both parties have to plead, but D has the burden of proof):
                   Debt repayment: P alleges non-payment of a loan. D cannot simply deny (D denies
                      allegation X), it must allege that it did repay. And the burden of proof falls on D, b/c P
                      doesn’t have a way to prove that D paid. D does (has the canceled check, receipt, etc.).
                   Defamation: P alleges that D defamed P. An element of that claim is that the alle-
                      gation is false. D cannot simply deny, but must allege that his statement was true. D
                      has the burden of showing that the statement is true (impossible for P to prove falsity).
o   Rule 7 defines pleading
          (a) – there shall be a complaint and an answer.
                   Original complaint and counter-claims
                   Answer (D’s response to P’s complaint)
                   Reply (P’s response to D’s answer)
          (b) – motions not made during a hearing or trial shall be in writing.
o   Rule 8 lays out the general rules of pleadings
          Pleading setting forth a claim for relief shall contain:
                   Short and plain statement of the grounds upon which the court’s jurisdiction depends
                      (SMJ) [(a)(1)]
                   Short and plain statement of the claim [(a)(2)]
                   Demand for judgment [(a)(3)]
o   Rule 10 requires that pleading appear in a certain way:
          Caption setting forth court’s name, title of the action, file number, designation (answer, etc.)
          Numbered paragraphs w/ one averment/paragraph
o   Rule 11 requires that all pleadings, written motions or other papers include an attorney’s signature (or
    if pro se, the signature of the party.



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          Signature certifies that to the best of the signer’s knowledge, information and belief formed
           after an inquiry reasonable under the circumstances:
                Claim is not presented to harass or cause unnecessary delay
                Claims, defenses, and other contentions are warranted by existing law or by non-
                    frivolous argument for extension, modification, or reversal of existing law
                All allegations and factual contentions have evidentiary support
                Denial of factual contentions is warranted or reasonably based on lack of 411 or belief
        Violations of Rule 11 result in sanctions:
                Party alleging violation drafts a motion for sanctions and serves to other party. If
                    unresolved w/in 21 days, the alleging party files the motion w/ the court.
                In response to the motion, the court may impose sanctions whose purpose is to deter
                    repetition of the conduct.
                The court may raise the issue sua sponte (OSC, Order to Show Cause – Rule Nisi) and
                    require party to show cause for the violation.
                Represented parties cannot suffer monetary sanctions, b/c the violation would not be
                    its fault, but rather that of the attorney.
                Where the court delivers a monetary sanction, it must first order the OSC prior to
                    voluntary dismissal or settlement.
o   Requirements of the complaint:
        Factual Significance:
                Code Pleading: P must plead the ultimate facts. D may make a special demurrer to
                    question the factual significance of the complaint.
                         o Alleging too few facts = stating legal conclusions
                         o Alleging too many facts = alleging evidence
                FRCP Pleading (Dioguardi): More liberal as to allow courts to decide cases on the
                    merits instead of technicalities.
                         o If the judge can read it and discern a cognizable claim you’re probably ok,
                              especially if P is pro se.
        Legal Sufficiency:
                Standard: If P proved everything alleged in the complaint, would the law provide a
                    remedy?
                         o If yes, the complaint is legally sufficient
                         o If no, the complaint, on its face, can’t support a judgment for P.
                Code Pleading: D challenges legal sufficiency through a general demurrer.
                FRCP Pleading: D challenges it through 12(b)(6) motion.
o   Requirements of the answer:
        An answer that doesn’t DENY an averment necessarily ADMITS it.
        Denied averments are JOINED  they must be adjudicated.
                D should avoid argumentative denials or introducing new facts, b/c they can result in
                    the denial being deemed an admission.
                D should avoid literal denials (negative pregnant)
                         o Should deny the allegation generally, NOT each specific fact b/c the latter
                              implies that although D is not guilty of the allegations in the manner stated, he
                              is guilty of them in a different circumstance.
                Specific Denials: “D denies allegations in paragraph 2.”
                Qualified Denials: “D admits allegations x, y, & z of paragraph 2, but denies the rest”
        Other than admitting or denying, D may assert that it has a lack of knowledge to do either.
                Lack of knowledge = it’s nearly impossible or too expensive to discover the 411.
                         o It’s in the file cabinet, but I don’t want to look = NOT lack of knowledge.
                         o I’m in GA but it’s in a giant CA warehouse = probably lack of knowledge.


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         The answer should set forth the affirmative defenses [8(c)].
         Failure to serve an answer results in a default.
o   Attacking a pleading:
         A party may move for judgment on the pleadings after the pleading stage is closed. The court
            examines only the pleadings and assumes all statements are true and decides whether the party
            should win or if disputed facts remain [12(c)].
                  Where parties present evidence outside the pleadings, the court treats the motion as
                    one for summary judgment.
         A party may move for a more definite statement if a pleading to which a responsive pleading
            is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a
            response, the party must move for a more definite statement before serving a response [12(e)].
                  If granted, the party has 10 days to serve the responsive pleading after service of the
                    more definite statement [12(e)].
         A party may move to strike before responding to a pleading or, if no responsive pleading is
            permitted by these rules, upon motion made by a party w/in 20 days after the service of the
            pleading upon the party, or upon the court’s own initiative at any time, the court may order
            stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent,
            or scandalous matter. [12(f)]
                  E.g. A party would want to strike allegations concerning fraud, malice, etc. b/c they
                    are the threshold to punitive damages.
o   AMENDING PLEADINGS [15]
         A party (P) may amend his pleading once as a matter of course at any time before a
            responsive pleading is served, or if the pleading is one in which a responsive pleading is not
            permitted & the action hasn’t been placed on the trial calendar, a party (D) may amend w/in
            20 days after it is served. [(a)]
         A party has at least 10 days to respond to an amended pleading. If the time remaining to
            respond to the original complaint is longer than 10 days, then party has that period [(a)].
         A party who misses a filing deadline may amend by leave of the court OR w/ written consent
            of adverse party. Leave shall be given freely when justice requires.
         Reasons P may amend:
                  New claim
                  To aver an omitted element of the prima facie case
                  To flesh out details of a current claim
         Reasons D may amend:
                  To deny an allegation it failed to deny
                  To raise an affirmative defense it failed to raise
         Variance – [15(b)] – the presentation of evidence on a point NOT covered in a pleading
                  A party can expressly consent to permitting the evidence (pretty stupid on his part)
                  Where adverse party does NOT object to the variance, that party has impliedly
                    consented to allow those new averments, and the court will construe them as if they
                    have always been a part of the pleading (sentences 1 and 2 of rule).
                         o This is granting a motion to amend to conform to the evidence.
                  Where adverse party objects to the variance, the relevant evidence is inadmissible.
                         o The other party may then assert that admission of the evidence would NOT
                              prejudice the adverse party. If the adverse party cannot disprove (i.e. prove
                              that the evidence would prejudice him), then the court will permit an
                              amendment to the pleading to reflect the evidence – sentences 3 and 4).
                         o This is NOT granting a motion to amend to conform to the evidence.
         Relation back [15(c)] – See SoL discussion
         Supplemental Pleadings pertain to facts that occur after P filed the case [15(d)].


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o   HEIGHTENED SPECIFICITY REQUIREMENT – [FRCP 9]
         Some courts try to impose them as docket controls, BUT US Sup. Ct. holds that the only valid
            exceptions to the liberal pleading rules are the ones in the FRCP
        Exceptions:
         Averments of fraud or mistake, P must state the circumstances constituting either w/
            particularity. P may state generally malice, intent, knowledge & other mental conditions [b]
         Party raises issues concerning capacity or existence of a party in a specific negative averment
         While a party pleads generally the occurrence of conditions necessary for performance, it
            denies performance of or occurrence of the condition specifically.
         A party makes claims for special damages specifically (e.g. car crash  permanent erection).
o   Pleading Inconsistent Facts and Alternative Theories [McCormick v. Kopmann]
         Acceptable where: (1) the primary witness is dead or incapacitated, or (2) P is genuinely
            unsure which theory is correct.
         A party may set forth two or more statements of a claim or defense alternately or
            hypothetically, either in one count or defense or in separate counts or defenses [8(e)(2)].
                 The counts are mutually exclusive which means that P CANNOT recover on both. It
                    does NOT preclude P from pleading both.
                 Multi-statement pleading is sufficient if at least one of the statements is sufficient. (i.e.
                    pleading an insufficient claim does not render the entire pleading insufficient).

                                           DISMISSALS [FRCP 41]
o   P may voluntarily dismiss w/o court order by filing:
        (1) the dismissal anytime before service by D of
                (a) an answer, or
                (b) motion for summary judgment (whichever comes first) [(a)(1)(i)]
        (2) a stipulation of dismissal that all parties appearing in the action have signed [(a)(1)(ii)]
        P may voluntarily dismiss w/ court order where D has filed an answer. The dismissal is w/o
           prejudice [(a)(2)].
        Where P dismisses twice and the 2ND DISMISSAL IS A NOTICE OF DISMISSAL, the court shall
           dismiss the case w/ prejudice. [(a)(1)]
o   Involuntary Dismissal [41(b)]
        Are usually ordered w/ prejudice (adjudication upon the merit) but there are exceptions:
                Lack of PJ
                Lack of SMJ
                Improper venue
                Failure to join an indispensable party
        Despite the rule’s language to the contrary, a court may order involuntary dismissal sua sponte
        Reasons for involuntary dismissals:
                Failure to prosecute
                        o May issue OSC (rule nisi) if there is no activity w/in a period [60(b)].
                        o Fed. Dist. have additional local rules that augment FRCP. Most include a
                            provision that requires P to show cause why court should NOT dismiss case if
                            there’s inactivity for a year.
                Failure to comply w/ FRCP
                Failure to comply w/ court order(s)
                Failure to meet the 12(b) non-waviable defenses (lack of SMJ, state a claim)

                               DEFAULT AND DEFAULT JUDGMENTS [FRCP 55]
o   The entry of default is always the same: when a party against whom a judgment is sought has failed to
    plead or otherwise defend as provided by the rules and that fact is made apparent by affidavit or
    otherwise, the clerk shall enter the party’s default [(a)].

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           Entry of default is simply a notation on the docket sheet that precludes the clerk from
            accepting an answer from D after the date of default.
         NOT automatic! P must make clerk aware of missed deadline (“made apparent by…”)
         The court may set aside an entry of default at P’s request if P can show good cause
                 excusable neglect
                 viable defense
o   P can obtain a default judgment from (1) the clerk of the court, or (2) the court.  how P gets award
         Clerk [(b)(1)]:
                 D never appeared (letter to court probably appearance where D is pro se litigant)
                 Relief is a sum certain (or readily calculable) b/c P claim was for pecuniary damages
                 D is not an infant or incompetent
                 P has submitted an affidavit (sworn statement) of the amount due.
         Court [(b)(2)]:
                 If any of the “Clerk” requirements is not true
                        o D has appeared at least once
                        o Relief is for non-pecuniary damages or unspecified pecuniary damages
                        o D is an infant or incompetent
                 P makes an application for the default judgment
                 A hearing to determine the damages occurs
                        o The court notifies D of the hearing if he has made some appearance.
                        o The judge determines the damages and anything else it wants, thus:
                                 Doesn’t necessarily result in a default judgment b/c judge has
                                    discretion to examine the merits and adjudicate upon them.
         The court may set aside a default judgment in accordance w/ FRCP 60(b) [(c)].
         P recovery can’t be for an amount or type different from that prayed for [54(c)].
o   Where D has missed a filing deadline, but P has not gotten the entry of default, D may seek an
    enlargement, an extension to submit an answer.

                                         STATUTE OF LIMITATIONS
o   Artificial, statutorily imposed temporal limitation on P’s ability to assert a claim. Established to put
    issues to rest after a certain period and to provide potential D’s w/ a peace of mind.
o   SoL begins to run when the claim accrues: (1) when the injury occurred, or (2) when P discovered it.
         If P does not file before the SoL runs, then it is barred from bringing the claim ad infinitum.
         Events may toll (suspend) the SoL: (1) lack of capacity (P not 18), (2) filing a case
o   P’s ability to amend after SoL has run [15(c)] turns on whether the amendment will relate back to the
    original pleading.
         Courts permit relation back b/c the purpose of pleadings is to put D on notice. If the
             amendment is sufficiently related to the original claim, then D has already gotten this notice.
         Amended pleading relates back to the original pleading when the amendment:
                   arose out of the same T/O or clarifies 411 in the original pleading
                   SoL permits it
                   seeks to change the D b/c P sued the wrong entity [15(c)(3)] provided that:
                           o amendment pertains to the same T/O as the original pleading
                           o P files it w/in 4(m) period for SoP (120 days) to ensure lack of prejudice
                           o D knew (should have known) but for P mistake it would have been served.




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