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Civil Procedure Outline 1!
By: SunsetSailor Date: February 17, 2011, 9:04 pm
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Process of litigation – Pre-filing to Pretrial to Trial & Appeal
1) Subject Matter Jurisdiction of Federal Courts – Original
Jurisdiction, Concurrent jurisdiction, Exclusive Jurisdiction
(1333-1338)
a) Federal Question
i) Does the constitution & statutes give supplemental
jurisdiction?
(1) A3§2  “Arising under” = broad, federal ingredient in
case
(2) 28 U.S.C. 1331  “Arising under” = narrow
(a) 1331: The district courts shall have original jurisdiction
of all civil actions arising under the Constitution, Laws, or
Treaties of the United States.
(b) Must come from Π’s complaint well pleaded
(c) “Smith” exception (see p. 223) for nationally important
federal issue, Fink & Tushnet
(i) What is the national interest in disposing the case as a
whole in federal courts?
(ii) How likely is it that national interests will be
implicated?
(iii) How likely is it that the Supreme Court will opt to
investigate the case?
b) Diversity
i) A3§2  Universe of Diversity
ii) 1332  limits to:
(1) complete diversity
(2) amount in question >$75,000
(a) Π has legal scaleΔ must prove that it is
excessive to a legal certainty that claim is less than that
asked
(b) For no $ value jurisdictions differ
(i) Value of injunction to Π
(ii) Cost to Δ for compliance
(iii) Cost/value to party invoking federal question
(c) Amount in counterclaims doesn’t matter if compulsory and
permissive
(3) Residence + intent to remain
(4) Corporations have dual cit (incorporation, principle place
of business)
iii) Measure after time complaint is filed for
iv) Alien or citizen of state:
(1) U.S. citizen + domiciled in a state = resident
(2) U.S. citizen + domiciled outside of US = no diversity
(3) Alien = place of residency and intent to remain
v) Divorce exception (states have interest in status of
citizens, no custody or property)
vi) Can’t pollute parties to create diversity (1359)
(1) A District Court shall not have jurisdiction of a civil
action in which any party, by assignment or otherwise, has been
improperly or collusively made or joined to invoke the
jurisdiction of such court
c) Removal
i) 1441 (a) + (b) – Δ can remove in most cases that Π
could have removed
(1) 1441 (a) Unless otherwise expressly provided by congress,
any civil action brought in a state court of which the district
courts of the United States have original jurisdiction, may be
removed by the defendant or defendants, to the district court of
the United States for the district and division embracing the
place where such action is pending. For purposes of removal
under this chapter, the citizenship of defendants sued under
fictitious names shall be disregarded.(Supplimental Jurisdiction
Only “so related so as to be part of the same case or
controversy”
(2) 1441 (b) Any civil action of which the district courts have
original jurisdiction founded on a claim or right arising under
the Constitution, treaties or laws of the United States shall be
removable without regard to the citizenship or residence of the
parties. Any other such action shall be removable only if none
of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.
(3) 1441 (c) Separate and independent claims (narrow). Whenever
a separate and independent claim or cause of action within the
jurisdiction conferred by section 1331 of this title is joined
with one or more otherwise non-removable claims or causes of
action, the entire case may be removed and the district court
may determine all issues therein, or, in its discretion, may
remand all matters in which State law predominates. Claim 1:
Valid Federal Court Claim + Claim 2: another claim within
constitution (minimal diversity or federal question ingredient)
RARE!
ii) 1446 – Procedure for removal
(a) (d)A defendant or defendants desiring to remove any civil
action or criminal prosecution from a State court shall file in
the district court of the United States for the district and
division within which such action is pending a notice of removal
signed pursuant to Rule 11 of the Federal Rules of Civil
Procedure and containing a short and plain statement of the
grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or defendants
in such action.
(b) (b)The notice of removal of a civil action or proceeding
shall be filed within thirty days after the receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which
such action or proceeding is based, or within thirty days after
the service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to be
served on the defendant, whichever period is shorter. If the
case stated by the initial pleading is not removable, a notice
of removal may be filed within thirty days after receipt by the
defendant, through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may first
be ascertained that the case is one which is or has become
removable, except that a case may not be removed on the basis of
jurisdiction conferred by section 1332 of this title more than 1
year after commencement of the action.
(c) (d)Promptly after the filing of such notice of removal of a
civil action the defendant or defendants shall give written
notice thereof to all adverse parties and shall file a copy of
the notice with the clerk of such State court, which shall
effect the removal and the State court shall proceed no further
unless and until the case is remanded.
iii) 1447 – Procedure after removal
(a) In any case removed from a State court, the district court
may issue all necessary orders and process to bring before it
all proper parties whether served by process issued by the State
court or otherwise.
(b) It may require the removing party to file with its clerk
copies of all records and proceedings in such State court or may
cause the same to be brought before it by writ of certiorari
issued to such State court.
(c) A motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within 30
days after the filing of the notice of removal under section
1446(a). If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case
shall be remanded. An order remanding the case may require
payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal. A certified
copy of the order of remand shall be mailed by the clerk to the
clerk of the State court. The State court may thereupon proceed
with such case.
(d) An order remanding a case to the State court from which it
was removed is not reviewable on appeal or otherwise, except
that an order remanding a case to the State court from which it
was removed pursuant to section 1443 of this title shall be
reviewable by appeal or otherwise.
(e) If after removal the plaintiff seeks to join additional
defendants whose joinder would destroy subject matter
jurisdiction, the court may deny joinder, or permit joinder and
remand the action to the State court.
d) Supplemental: See section 1367 “nucleus of operative facts”
i) 1367 (a) are claims w/no independent jurisdiction “so
related” to be part of same case or controversy”. Except as
provided in subsections (b) and (c) or as expressly provided
otherwise by Federal statute, in any civil action of which the
district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution. Such
supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties.
ii) 1367 (b) added Π’s must not destroy diversity (1332).
In any civil action of which the district courts have original
jurisdiction founded solely on section 1332 of this title, the
district courts shall not have supplemental jurisdiction under
subsection (a) over claims by plaintiffs against persons made
parties under Rule 14, 19, 20, or 24 of the Federal Rules of
Civil Procedure, or over claims by persons proposed to be joined
as plaintiffs under Rule 19 of such rules, or seeking to
intervene as plaintiffs under Rule 24 of such rules, when
exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section
1332.
iii) If court has power under 1367, does court have authority
and discretion?
(1) Common nucleus of operative facts
(2) Questions of federal Policy
2) Personal Jurisdiction - To which states can one make a
defendant come and sit to trial
a) History: Pennoyer  Int’l Shoe
b) Power
i) Rule 4 (k) (1)  if no congressional, look to state
ii) Statute (To allow non-res to be Δ in state, long-arm)
iii) Constitutional Inquiry (is it fair?) Pennoyer 
Int’l shoe
(1) General  significant contacts (residence,
incorporated, principle place of business, significant &
continuous)
(2) Specific
(a) Transient Service (split in supreme ct)
(i) Brennan: Need more than just minimum contacts
(ii) Scalia: Personal jurisdiction is traditional notions of
fair play & Justice (Those things that were fair when 14th
amendment passed, 1868, are fair today)
(b) Minimum contacts Δ – state – COA & purposeful availment
(Scalia: split jurisdictions)
(i) Stream of commerce is sufficient (Brennan)
(ii) Need something more  goods + aware of market +
target particular state (O’Connor)
(iii) Stevens  Factors: Quantity, Cost, and Hazard
(c) Reasonableness factors (Brennan)
(i) Interests of Π
(ii) Interests of Δ
(iii) Interests of forum state
(iv) Judicial economy – Efficient resolution of the case
 don’t split it up
(v) Interests of interstate justice  substantial social
Policy that underlies lawsuit
(d) Interaction between Min contacts and reasonableness
(balancing test)
iv) How to attack personal jurisdiction:
(1) Direct :12(b), (g), or (h) or special appearance
(a) 12(b) How Presented. Every defense, in law or fact, to a
claim for relief in any pleading, whether a claim, counterclaim,
cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto if one is required, except that the
following defenses may at the option of the pleader be made by
motion: (1) lack of jurisdiction over the subject matter, (2)
lack of jurisdiction over the person, (3) improper venue, (4)
insufficiency of process, (5) insufficiency of service of
process, (6) failure to state a claim upon which relief can be
granted, (7) failure to join a party under Rule 19. A motion
making any of these defenses shall be made before pleading if a
further pleading is permitted. No defense or objection is waived
by being joined with one or more other defenses or objections in
a responsive pleading or motion. If a pleading sets forth a
claim for relief to which the adverse party is not required to
serve a responsive pleading, the adverse party may assert at the
trial any defense in law or fact to that claim for relief. If,
on a motion asserting the defense numbered (6) to dismiss for
failure of the pleading to state a claim upon which relief can
be granted, matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one
for summary judgment and disposed of as provided in Rule 56, and
all parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.
(b) 12(g) Consolidation of Defenses in Motion. A party who
makes a motion under this rule may join with it any other
motions herein provided for and then available to the party. If
a party makes a motion under this rule but omits there from any
defense or objection then available to the party which this rule
permits to be raised by motion, the party shall not thereafter
make a motion based on the defense or objection so omitted,
except a motion as provided in subdivision (h)(2) hereof on any
of the grounds there stated.
(c) 12 (h) Waiver or Preservation of Certain Defenses.
(i) A defense of lack of jurisdiction over the person, improper
venue, insufficiency of process, or insufficiency of service of
process is waived (A) if omitted from a motion in the
circumstances described in subdivision (g), or (B) if it is
neither made by motion under this rule nor included in a
responsive pleading or an amendment thereof permitted by Rule
15(a) to be made as a matter of course.
(ii) A defense of failure to state a claim upon which relief can
be granted, a defense of failure to join a party indispensable
under Rule 19, and an objection of failure to state a legal
defense to a claim may be made in any pleading permitted or
ordered under Rule 7(a), or by motion for judgment on the
pleadings, or at the trial on the merits.
(iii) Whenever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.
(2) Collateral attack
(a) Default and attack when enforce judgment
(b) Cannot argue merits.
c) Consent
i) Waiver or consent to personal jurisdiction
(1) By Contract (consent)
(a) Choice of law
(b) Issues
(i) No bad faith (valid K, over-reaching, fraud)  (to
discourage litigation all together)
(ii) Notice to possible Π’s
(2) Rule 37 (b) (2) (a)  court order for waiver (not
providing documents to prove lack of personal jurisdiction): An
order that the matters regarding which the order was made or any
other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order;
(3) 12 (b) (g) see 2 a iii
(4) 12 (h) (1) see 2 a iii
d) Notice
i) Pennoyer  Int’l Shoe  Mullane
(1) Statute/Rule 4  must have both (for Rule 4, see
FRCP)
(a) Form
(b) Issuance (Follow rules of forum state OR state of residence
of Δ’s)
(c) Service with Complaint; By Whom Made
(i) Π responsible
(ii) Responsible person >18 yrs may effect summons
(d) Waiver of Services
(i) Only good to competent individuals in U.S., Competent
individuals in foreign countries, and corporations
(ii) Through first-class mail or other reliable
(iii) Copy of complaint W/ court of filing
(iv) Include consequences
(v) Δ has 30 days to return waiver, 60 for outside U.S. or
reasonable time
(vi) Extra copy of notice & prepaid means of return
(vii) Δ then has 60 days to answer (90 for foreign)
(e) Individuals in U.S. – Follow rules of forum state OR state
of residence of Δ’s  Personally, or @ place of
residence
(f) Individuals in Foreign Countries
(g) Corporations  Same as Δ’s state of residence or
forum state. Issue to Officer, Managing agent, or authorized
agent
(h) U.S as Δ
(i) Foreign, state or local governments
(j) Territorial Limits
(i) Service of a summons or filing a waiver of service is
effective to establish jurisdiction over the person of a
defendant
(A) who could be subjected to the jurisdiction of a court of
general jurisdiction in the state in which the district court is
located, or
(B) who is a party joined under Rule 14 or Rule 19 and is served
at a place within a judicial district of the United States and
not more than 100 miles from the place from which the summons
issues, or
(C) who is subject to the federal interpleader jurisdiction
under 28 U.S.C. § 1335, or when authorized by a statute of the
United States.
(ii) If the exercise of jurisdiction is consistent with the
Constitution and laws of the United States, serving a summons or
filing a waiver of service is also effective, with respect to
claims arising under federal law, to establish personal
jurisdiction over the person of any defendant who is not subject
to the jurisdiction of the courts of general jurisdiction of any
state.
(k) Proof of service
(l) Time limit for Service (120 days from filing complaint)
(m) Seizure of Property, service not feasible
(2) Constitutional
(a) Reasonably calculated under the circumstances to reach
Δ’s
3) Venue – In which jurisdiction can the case be brought?
a) Is venue appropriate: (1391)
i) For Diversity Only: venue is proper in:
(1) Judicial district where Δ resides
(2) Judicial district where COA occurred, or much property of
COA is located or
(3) Judicial district in which any Δ is subject to personal
jurisdiction (if venue nowhere else)
ii) For not-diversity: venue is proper in:
(1) Judicial district where any Δ resides if all Δ
reside in same state
(2) Judicial district in which COA or property with COA occurred
or
(3) Judicial district where any Δ may be found (if venue
nowhere else)
iii) For Δ corporation, treat each district as an
individual state, corp must have minimum contacts with that
district, or in that in which it has most contacts.
iv) Alien may be sued in any district
v) Δ is employee of U.S (See FRCP)
vi) Δ is a foreign state (See FRCP)
b) Policy: Courts favor party bringing suit EXCEPT where that
party is foreign, bringing suit to take advantage of laws
c) How to challenge 12(b) (3)
d) If appropriate Venue:
i) Dismiss (FNC  forum non convinens)  all needs
to be appropriate
(1) Policy = If all is good, can feds dismiss to another court?
(2) Courts may grant with stipulation that Δ waive all
defenses that would keep them out of new court
(3) Venue must be appropriate in first court
(4) Another forum for the suit must exist
(5) In state court  give case to another state
(6) Factors for the convenience of the forum: (text p. 205)
(a) Public interest factors
(i) Local interests of having controversies decided at home
(ii) Interest of having the trial in the state whose law will
apply
(iii) Avoidance of conflict of laws
(iv) Unfairness to jury in application of unfamiliar laws
(b) Private interest factors
(i) Relative ease of access to sources of proof
(ii) Cost and effort of obtaining attendance of unwilling
witnesses
(iii) View of premises
(iv) Practical problems making trial easy, expeditious, and
inexpensive
(c) Gilbert Balancing Test: Π’s choice of court upheld
EXCEPT where jurisdiction is available elsewhere AND:
(i) Δ is oppressed or vexed
(ii) Court administrative and legal problems
ii) Transfer
(1) Reasons:
(a) Convenience of parties
(b) Interests of Justice see public and private interest
factors, and Gilberts ↑
(c) Law of transferring state applies (where venue is first
appropriate)
(d) Any party may move for transfer
(2) 1404
(a) For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might have
been brought.
(b) Upon motion, consent or stipulation of all parties, any
action, suit or proceeding of a civil nature or any motion or
hearing thereof, may be transferred, in the discretion of the
court, from the division in which pending to any other division
in the same district. Transfer of proceedings in rem brought by
or on behalf of the United States may be transferred under this
section without the consent of the United States where all other
parties request transfer.
(c) A district court may order any civil action to be tried at
any place within the division in which it is pending.
(d) As used in this section, the term "district court" includes
the District Court of Guam, the District Court for the Northern
Mariana Islands, and the District Court of the Virgin Islands,
and the term "district" includes the territorial jurisdiction of
each such court.
(3) 1406
(a) The district court of a district in which is filed a case
laying venue in the wrong division or district shall dismiss, or
if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.
(b) Nothing in this chapter shall impair the jurisdiction of a
district court of any matter involving a party who does not
interpose timely and sufficient objection to the venue.
(c) As used in this section, the term "district court" includes
the District Court of Guam, the District Court for the Northern
Mariana Islands, and the District Court of the Virgin Islands,
and the term "district" includes the territorial jurisdiction of
each such court.
e) If not appropriate Venue:
i) Dismiss (FNC)? (does venue need to be appropriate?)
ii) Transfer
(1) See public, private and Gilberts ↑
(2) Law of transferring state does NOT apply (law of state where
venue is first appropriate)
(3) 1406 (a) (see above)
(4) 1631 SMJ and (maybe) PJ wrong: Whenever a civil action is
filed in a court as defined in section 610 of this title or an
appeal, including a petition for review of administrative
action, is noticed for or filed with such a court and that court
finds that there is a want of jurisdiction, the court shall, if
it is in the interest of justice, transfer such action or appeal
to any other such court in which the action or appeal could have
been brought at the time it was filed or noticed, and the action
or appeal shall proceed as if it had been filed in or noticed
for the court to which it is transferred on the date upon which
it was actually filed in or noticed for the court from which it
is transferred.
4) The “Erie Problem: -
a) POLICY: Federal rules are given more deference than federal
common law because congress granted powers to supreme court to
make fed rules,  no “One Supervening Law” Allow states
to make substantive law
b) In diversity, when does state control the law? (Hanna test)
i) Fed law based in FRCP, FRAP, or Federal Statute.
(1) Can the rule be in conflict with the state law? (yes
fed)
(2) Is the Rules Enabling Act constitutional?
(a) Yes
(b) Because of the method by which it was passed, committee by
supreme court
(3) Does the statute regulate procedure (Is it valid under REA)
(a) Effect judicial process, rights and obligations, justly
administer remedy
(b) Abridge, enlarge or modify substantial right? (No Supreme
Coutr Ever Ruled)  Argue Here
(4) Would rational people classify the statute as procedural or
substantial (if classify as either  fed)
(5) Is FRCP, FRAP, or Fed Statute constitutional?
(a) Yes
(b) Because of the method by which it was passed, committee by
supreme court
ii) Fed Law is based on Fed Common Law (Practice)
(1) Modified Outcome determinative test (Hanna Dicta, if both
no, follow fed)
(a) Does application of fed law increase Forum Shopping?
(b) Does application of fed law result in inequitable
administration of the laws? (same law applied differently)
(2) Byrd balancing test
(a) State law is bound with rights & obligations (read:
“substantive”)  state law applied
(b) State law matter of form & mode (read: “procedural”)
 balance factors:
(i) Is there certainty in the outcome-determinative test?
(ii) States interests in applying state law
1. legislative reasons for statute
2. court reasons for common law
(iii) Federal interests in applying fed law (i.e.)
1. protection of 7th amendment rights (jury)
2. protection of federal procedure
5) Incentives to litigate
a) Substitutionary Relief
i) Compensation damages – Restore injured party as nearly as
possible to how world would have been without the wrong
(1) Π must prove damages (documentation is good)
(2) Π must mitigate damages as much as possible
(3) Π’s must prove individual pain and suffering
(4) NO ATTY’S FEES
(5) POLICY: If Π does not need to fear paying Δ’s
atty fees, he is more likely to bring suit
(6) Interest:
(a) Pain and Suffering: Post-Judgment Interest only
(b) Compensatory: Pre–Judgment Interest
ii) Non-compensatory
(1) Liquidated
(a) K provides damages
(b) Void if unreasonable
(2) Statutory – damages provided by legislative statute
(3) Punative damages  Due Process?
(a) Requires minimal procedural to ensure that punitive damages
were not rewarded in an arbitrary manner
(i) Judicial Review OR
(ii) Substitute
(b) Precludes “grossly excessive” punitive damages:
(i) Degree of reprehensibility
(ii) Disparity between harm and reward
(iii) Difference between remedy and penalty
b) Specific relief
i) Declaratory relief
ii) “Provisional” remedies – relief prior to final judgment
(1) Injunctions (Rule 65)
(a) Preliminary Injunction -- Must Be Notice Before Injunction
is Issued:
(i) Common-Law Test
1. Irreparable injury to the Π if no TRO
2. Balance hardship to Π if denied with hardship to Δ
if granted
3. Π will probably win later case on the merits
4. Must be in the public interest
(ii) Alternative test
1. Π will suffer irreparable harm if no TRO AND EITHER
a. Probable success at the later trial and possible injury to
Π OR
b. Balance test for Π, and equal chance of winning at trial
on merits
2. Must be in the public interest
(iii) Procedural or substantive? Rule 65, but developed in
common law  use Byrd balancing and Hannah Dicta
(b) Temporary Restraining Order (specifics in Rule 65)
(i) May be granted WITHOUT NOTICE IF:
1. Need Affidavit or Verified Complaint testimony of
2. Immediate irreparable injury
3. Π’s attorney certifies to court efforts to notify
opposing party
(ii) Will expire in at most 10 days, as the court sees fit
(iii) If no notice, hearing at soonest possible time, takes
precedence over all other activities
(iv) May be appealed immediately (28 USC §1292 (a) (1))
(c) Security must be given by party asking for Injunction to
cover costs if they loose on the merits
(i) Unless party is the US
(ii) In reality, is never enough to cover the real damages
c) Financing the litigation
i) American Rule
(1) All parties pay for their own legal costs
(a) Encourages Π to bring suit
(2) Common Fund
(a) Where one litigation creates a fund where many Π’s may
be found, the common fund pays for the suit
(3) Contract
(a) Parties in K relationships may agree to pay for suits
brought by the other side
(4) Common Law: Often forces party to pay for litigation in
malicious prosecution
(5) Statute
(a) 42 USC §1988 “in any action proceeding to enforce [civil
rights], the court in its discretion may allow the prevailing
party other than the United States a reasonable attorney’s fee
as part of the costs
(b) Policy  make it easier to enforce civil rights
(6) Chance to Settle (Rule 68)
(a) If Δ offers to settle before final judgment for an
amount greater than that awarded at final judgment,
(i) Π may not collect his own costs incurred after the
offer was made, and,
(ii) Π must pay Δ’s costs after the offer was made
(b) Normally not for atty’s fees
6) Pleading
a) The complaint
i) History:
(1) English (equity&law)  Code pleading  Notice
Pleading
(2) Policy: No dismissal of claims on procedural technicalities,
Judicial economy  Notice & Discovery
ii) Complaint
(1) FRCP 8 (a) A pleading which sets forth a claim for relief,
whether an original claim, counterclaim, cross-claim, or
third-party claim, shall contain (1) a short and plain statement
of the grounds upon which the court's jurisdiction depends,
unless the court already has jurisdiction and the claim needs no
new grounds of jurisdiction to support it, (2) a short and plain
statement of the claim showing that the pleader is entitled to
relief, and (3) a demand for judgment for the relief the pleader
seeks. Relief in the alternative or of several different types
may be demanded. NOTICE!
(a) Short & Brief of Jurisdiction
(b) Short & Brief of Claim (notice)
(c) Short & Brief of Remedy
(2) Challenges 12(b)(6) failure to state a claim
(a) Facts  no set of facts would make COA available
(b) Law  no matter what the facts are, the law provides
no COA
iii) Disfavored claims
(1) Fraud & Mistake (Rule 9b) Fraud, Mistake, Condition of the
Mind. In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with
particularity. Malice, intent, knowledge, and other condition of
mind of a person may be averred generally.
(a) Detail Fraudulent statements
(b) ID Speaker
(c) When & Where
(d) Why the statements were fraudulent
(2) Civil rights – No higher pleading necessary, Civil Claims
Easy, should not be discouraged
iv) Ethical limits
(1) Standard  Objective & Reasonable
(2) Rule 11
1) Signature: All pleadings must be signed
2) Representations: to the best of the persons Knowledge,
Information and Belief
a) No improper Purpose (harass, delay, increase cost)
b) Nonfrivolous (warranted by existing law, acceptable extension
of law)
c) Claims have evidentiary support, or are likely to have
evidentiary support
d) Denials are warranted on factual evidence
3) Sanctions (only after notice and time for response sanctions
against violation of section 2)
a) By Motion - Served to party, if no remedy in 21 days, then to
court
b) By Court – Court may sanction by own initiative
c) Limited to deter repetition
i) No monetary sanctions for nonfrivolous
4) Does not apply to discovery
(a) Signature. Every pleading, written motion, and other paper
shall be signed by at least one attorney of record in the
attorney's individual name, or, if the party is not represented
by an attorney, shall be signed by the party. Each paper shall
state the signer's address and telephone number, if any. Except
when otherwise specifically provided by rule or statute,
pleadings need not be verified or accompanied by affidavit. An
unsigned paper shall be stricken unless omission of the
signature is corrected promptly after being called to the
attention of the attorney or party.
(b) Representations to Court. By presenting to the court
(whether by signing, filing, submitting, or later advocating) a
pleading, written motion, or other paper, an attorney or
unrepresented party is certifying that to the best of the
person's knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances,--
(i) it is not being presented for any improper purpose, such as
to harass or to cause unnecessary delay or needless increase in
the cost of litigation;
(ii) the claims, defenses, and other legal contentions therein
are warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law or the
establishment of new law;
(iii) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are
likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(iv) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based
on a lack of information or belief.
(c) Sanctions. If, after notice and a reasonable opportunity to
respond, the court determines that subdivision (b) has been
violated, the court may, subject to the conditions stated below,
impose an appropriate sanction upon the attorneys, law firms, or
parties that have violated subdivision (b) or are responsible
for the violation
(i) How Initiated.
1. By Motion. A motion for sanctions under this rule shall be
made separately from other motions or requests and shall
describe the specific conduct alleged to violate subdivision
(b). It shall be served as provided in Rule 5, but shall not be
filed with or presented to the court unless, within 21 days
after service of the motion (or such other period as the court
may prescribe), the challenged paper, claim, defense,
contention, allegation, or denial is not withdrawn or
appropriately corrected. If warranted, the court may award to
the party prevailing on the motion the reasonable expenses and
attorney's fees incurred in presenting or opposing the motion.
Absent exceptional circumstances, a law firm shall be held
jointly responsible for violations committed by its partners,
associates, and employee
2. On Court's Initiative. On its own initiative, the court may
enter an order describing the specific conduct that appears to
violate subdivision (b) and directing an attorney, law firm, or
party to show cause why it has not violated subdivision (b) with
respect thereto.
(ii) Nature of Sanction; Limitations. A sanction imposed for
violation of this rule shall be limited to what is sufficient to
deter repetition of such conduct or comparable conduct by others
similarly situated. Subject to the limitations in subparagraphs
(A) and (B), the sanction may consist of, or include, directives
of a nonmonetary nature, an order to pay a penalty into court,
or, if imposed on motion and warranted for effective deterrence,
an order directing payment to the movant of some or all of the
reasonable attorneys' fees and other expenses incurred as a
direct result of the violation.
1. Monetary sanctions may not be awarded against a represented
party for a violation of subdivision (b)(2).
2. Monetary sanctions may not be awarded on the court's
initiative unless the court issues its order to show cause
before a voluntary dismissal or settlement of the claims made by
or against the party which is, or whose attorneys are, to be
sanctioned.
(iii) Order. When imposing sanctions, the court shall describe
the conduct determined to constitute a violation of this rule
and explain the basis for the sanction imposed.
(d) Inapplicability to Discovery. Subdivisions (a) through (c)
of this rule do not apply to disclosures and discovery requests,
responses, objections, and motions that are subject to the
provisions of Rules 26 through 37.
b) Responses to the claimant
i) Pre-answer motion (Rule 12)
Rule 12 Motions:
May be Made by Motion:
If Motion is Made, But Element is Missing:
If not in Response:
Defenses
Subject Matter Jurisdiction
Before Response
Personal Jurisdiction
Before Response
Waived
Waived
Improper Venue
Before Response
Waived
Waived
Insufficient Process
Before Response
Waived
Waived
Insufficient Service
Before Response
Waived
Waived
Failure to State a Claim
Before Response
Waived
Failure to Join a Party
Before Response
Waived
Judgment on the pleadings
After Pleadings Are Closed, But Before Trial
More Definite Statement
Before Response, Other party then gets 10 days to clarify
Strike
Before Response, or, if no response, within 20 days, or by court
at any time (redundant, immaterial, impertinent, or scandalous
matter)
Waived
ii) The answer
(1) Rule 8 (b,c,d)
(a) Defenses; Form of Denials. A party shall state in short and
plain terms the party's defenses to each claim asserted and
shall admit or deny the averments upon which the adverse party
relies. If a party is without knowledge or information
sufficient to form a belief as to the truth of an averment, the
party shall so state and this has the effect of a denial.
Denials shall fairly meet the substance of the averments denied.
When a pleader intends in good faith to deny only a part or a
qualification of an averment, the pleader shall specify so much
of it as is true and material and shall deny only the remainder.
Unless the pleader intends in good faith to controvert all the
averments of the preceding pleading, the pleader may make
denials as specific denials of designated averments or
paragraphs or may generally deny all the averments except such
designated averments or paragraphs as the pleader expressly
admits; but, when the pleader does so intend to controvert all
its averments, including averments of the grounds upon which the
court's jurisdiction depends, the pleader may do so by general
denial subject to the obligations set forth in Rule 11.
(b) Affirmative Defenses. In pleading to a preceding pleading, a
party shall set forth affirmatively accord and satisfaction,
arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure
of consideration, fraud, illegality, injury by fellow servant,
latches, license, payment, release, res judicata, statute of
frauds, statute of limitations, waiver, and any other matter
constituting an avoidance or affirmative defense. When a party
has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the court on terms, if justice so
requires, shall treat the pleading as if there had been a proper
designation.
(c) Effect of Failure to Deny. Averments in a pleading to which
a responsive pleading is required, other than those as to the
amount of damage, are admitted when not denied in the responsive
pleading. Averments in a pleading to which no responsive
pleading is required or permitted shall be taken as denied or
avoided.
(2) Rule 10
(a) Caption; Names of Parties. Every pleading shall contain a
caption setting forth the name of the court, the title of the
action, the file number, and a designation as in Rule 7(a). In
the complaint the title of the action shall include the names of
all the parties, but in other pleadings it is sufficient to
state the name of the first party on each side with an
appropriate indication of other parties.
(b) Paragraphs; Separate Statements. All averments of claim or
defense shall be made in numbered paragraphs, the contents of
each of which shall be limited as far as practicable to a
statement of a single set of circumstances; and a paragraph may
be referred to by number in all succeeding pleadings. Each claim
founded upon a separate transaction or occurrence and each
defense other than denials shall be stated in a separate count
or defense whenever a separation facilitates the clear
presentation of the matters set forth.
(c) Adoption by Reference; Exhibits. Statements in a pleading
may be adopted by reference in a different part of the same
pleading or in another pleading or in any motion. A copy of any
written instrument which is an exhibit to a pleading is a part
thereof for all purposes.
c) Reply to counterclaim (Rule 7a), Allowable pleadings
i) There shall be a complaint and an answer; a reply to a
counterclaim denominated as such; an answer to a cross-claim, if
the answer contains a cross-claim; a third-party complaint, if a
person who was not an original party is summoned under the
provisions of Rule 14; and a third-party answer, if a
third-party complaint is served. No other pleading shall be
allowed, except that the court may order a reply to an answer or
a third-party answer.
ii) Only on motions that require response:
(1) Named Counterclaim in Answer OR
(2) Ordered by court
7) Ammended Pleadings, Rule 15  POLICY of notice to
opposing party
a) When:
i) Once, as a matter of course BEFORE responsive pleading OR:
ii) If no responsive pleading is begged, & action not placed on
trial calendar, w/in 20 days after service of pleading
iii) Written consent from opposing party
iv) Leave of court
(1) to be freely given when justice requires
(2) Justice Does so require, unless:
(a) Bad faith
(b) Issues of prejudice to opposing party
(c) Undue delay
(d) Futility: Repeated failures to cure problem despite chances
b) Response to amended in time remaining to answer, OR 10 days,
whichever is longer
c) After Statute of limitations on new pleading has run:
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