Professional Documents
Culture Documents
SERVICE
Rule 3
P les Complaint commencing the
civil action
Rule 4(a)
(1) P writes Summons:
(a) Court/Parties
(b) Defendant
(c) Name/Address of P's (attorney)
(d) Time to Respond
(e) Default Mention
(f) Clerk signature
(g) Court Seal
Rule 4(b)
Greene v. Lindsey
BLL: In depriving a person of
adequate notice of
proceedings against them,
the State deprived them of
property without due
process. Notice must be
reasonably calculated
Sufciency of notice
depends on the interest.
Jones v. Flowers
*Before 1993
except under specied circumstances which
include a summons and complaint served pursuant
to the law of the State- was added to the end of 4c2
reorganizing the role into a who and a
how suggests that they moved away from the
restrictions
reorganizing the role into a who and a
how suggests that there was no reason to depart
from the previous rules; there is no history to
suggest the reason that the
Property is a
signicant interest
and should take extra
care
Form 6
Rule 4(d)
Waiver of Service
(60 days)
Service
Form 3: 21 days to respond or
60 if US
Rule 4(m)
If not served within 120 days of
complaint; dismiss or allow for
time; must extend if good
reason
Rule 4(c)*
(1) Summons must have copy of
complaint
(2) Server is 18+ AND not party
(3) P may request (deputy)
marshal or an appointee
Rule 4(e)
(1) Follow state law of D. Court
or State of Service
(2) Deliver to:
(A) Personal
(B) Person suitable age and
discretion at usual dwelling
(C) An Agent
Rule 4(l)
Proof:
(1) Server Afdavit
(3) Failure to prove doesn't
affect validity; can amend proof
Rule 4(m)
120 days from ling the complaint to serve
or dismissed without prejudice
UNLESS good reason to extend
2
Rule 8(e): Pleadings
must be construed so as
to do justice
Form 11
for
guidance
on
Complaint
Conley v. Gibson
"The accepted rule that a
complaint should not be
dismissed for failure to state
a claim unless it appears
beyond doubt that the plaintiff
can prove no set of facts in
support of his claim which
would entitle him to relief"
"that will give D fair notice
of what P's claim is and the
grounds upon which it rests"
Rule 8 (d)(1):
Allegations must be
simple, concise,
and direct; no
technical form
required
12(b)(6):
Failure to State a claim
upon which relief can be
granted
Swierkiewicz v. Sorema
"Must accept as true all of the
factual allegations contained
in the complaint"
Y: Not enough to just say "is
liable without giving any hint
about a theory of
cognizability"
Papasan v. Allain
"on a motion to dismiss,
courts "are not bound to
accept as true a legal
conclusion couched as a
factual allegation""
Leatherman
Courts not allowed to use
heightened pleading
requirement (immunity)
EXCEPTION: 9(b)
Must state with particularity
the circumstances
constituting fraud or mistake;
Malice, intent, knowledge,
conditions of mind may be
alleged generally
Qualied Immunity:
Judicial created doctrine
shields from liability a
public ofcial who is found
to have acted lawfully if his
actions are found to have
been taken in good faith
Ashcroft v. Iqbal
Not Just Antitrust
Interpretation of Rule 8
which by Rule 1 "governs
the pleading standard 'in
all civil actions and
proceedings in US district
courts'"
Is it conclusory?
"While legal conclusions
can provide the framework
of a complaint, they must
be supported by factual
allegations. When there
are well-pleaded factual
allegations, a court should
assume their veracity and
then determine whether
that plausibly give rise to
an entitlement to relief."
Is it specic?
"claim too chimerical to be
maintained"
Is it consistent?
"But given more likely
explanations, they do not
plausibly establish this
purpose"
Iqbal:
"question presented by a
motion to dismiss does not
turn on the controls placed
upon the discovery process"
"basic thrust os the qualiedimmunity doctrine is to free
ofcials from the concerns of
litigation, including
'avoidance of disruptive
discovery.'decient under
Rule 8not entitled to
discovery, cabined or
otherwise."
Rule 7
(a) Pleadings allowed:
(1) complaint
(2) answer to complaint
(3)an answer to a counterclaim
designated as a counterclaim
(required to answer cc)
(4) answer to a crossclaim
(5) 3rd party complaint
(6) answer to 3rd party comp.
(7) reply to answer if court
orders
If 12b6 or
12c motion
includes
matters
outside the
pleadings;
treat it as a
motion for
summary
judgment
under Rule
56; Give
parties time
gather
materials
Rule 12(d)
Duplicity
Rule 8(d)(2)
Party may set out two or
more statements of a
claim or defense
alternatively or
hypothetically; pleading
sufcient if any sufcient
Rule 8(d)(3)
As many claims or
defenses and may be
inconsistent
Rule 55(a):
Failure to plead or defend
shown by afdavit or
otherwise is default
judgement
Answer
Denial (Traverse)
Confession and Avoidance
(Afrmative Defenses
Rule 12(a)(3)
US ofcer/employee same as
above but service on the latest
Rule 12(a)(2)
US gets 60 days for complaint,
counter, cross claim after
service on US attorney
Pre-Answer Motion
Rule 12(b) Answer
asserted in the responsive
pleading; these thru motion
(1) SMJ & (2) PJ
(3) Improper venue
(4) insufcient process 4a
(5)insufcient service 4e2b
(6) Failure to state claim...
SEE AQUASLIDE
Equitable Estoppel
Zielinski v.
Philadelphia Piers,
Inc.
Insufcient, redundant,
immaterial, impertinent,
scandalous
(1) on court's own
(2) on motion before
response or if no
response allowed, 21
days after pleading
served
Rule 12(i)
Haddle; 12(b)(6)
Demurrer
*See Chart
Rule 11 Sanctions
ANSWER
4
AMENDMENTS
Rule 15 Amended and
Supplemental Pleadings
15(a)(2) Other
Amendments: opposing
party's written consent or
court's leave. "freely give
leave when justice so
requires"
15(a)(3) Time to Respond
Unless court says, any
required response to
amended pleading must be
made within the time
remaining to respond to
the original pleading or
within 14 days after service
of the amended pleading,
whichever is later
1. Any lawyer would 1st?
2. Prejudice
3. legally insuf. (12b6 SoL)
4. earlier opportunities?
5. Strategy; Discovery?
GLANNON 386
(1) Based on an
objection at Trial; party
objects that evidence is not
within the issues raised in
the pleadings, court may
permit pleadings to be
amended. Court should
freely permit an
amendment when doing so
will aid in presenting the
merits and the objecting
party fails to satisfy the
court that the evidence
would prejudice that
party's action or defense
on the merits. The court
may grant a continuance to
enable the objecting party
to meet the evidence.
12c1C
1. on notice?
2. Same conduct?
3. Should have known
against self?
Rule 20a2
allows
joinder of
D's but does
not require
5
Duplicity
SANCTION
Rule 8(d)(2)
Party may set out two or
more statements of a
claim or defense
alternatively or
hypothetically; pleading
sufcient if any sufcient
Rule 8(d)(3)
As many claims or
defenses and may be
inconsistent
Rule 55(a):
Failure to plead or defend
shown by afdavit or
otherwise is default
judgement
Haddle; 12(b)(6)
demurrer
Failure to state a claim
upon which relief can be
granted; [wrongful ring];
even if true...
Rule 11(b)
(1) no improper purpose
(harass, delay, ^$)
(2) warranted by existing
law or non frivolous
argument for extending,
modifying, reversing law
or establishing new law
Earthgrains
No sanctions in 4th Circuit
when circuit precedent
contrary to other circuits
(Think Brown and Plessy)
Notes: Consider Time
(3) factual contentions
have evidentiary support
or will likely have
evidentiary support at
discovery
(4) denials of factual
contentions warranted by
evidence or reasonably
based on belief or lack of
information
O'Brien v. Alexander
11b broad enough to
punish oral
misrepresentation if it has
substantial connection to
a signed document
presented to court
Rule 11(c)(1)
After notice &
opp. to
respond
impose
sanctions;
rms jointly
responsible
Rule 11(c)(2)
Rule 11 motion made
separately and describe
conduct; served under Rule
5; w/draw if corrected w/in
21 days
Rule 11(c)(3)
[Show cause order]
Court may ask why not
in violation 11b; Notes:
No 21 day safe harbor
Rule 11(c)(4)
Limited to what
deters repetition or
comparable conduct;
nonmonetary; $court;
$movant for A.fees
and other expenses
Rule 11(c)(5)
No $$:
(A) violating
Rule11b2
(B) on it own unless
issued under 11c3
before voluntary
dismissal or
settlement by or
against the party that
is to be sanctioned
Rule 11 Sanctions
Rule 11(c)(6)
Chaplin v. DuPont Advance
Creatively create or expand jurisprudence "may
merit dismissal, but not punishment"
Signature on documents
with email, address,
phone #
Notes: Sign or duplicate
Rule 11(d)
Inapplicable to discovery
6
DISCOVERY
Hickman v. Taylor (work prod) NO 26b3 then
"Mutual knowledge of all the relevant facts gathered by both parties
is essential to proper litigation"; "Contravenes the public policy
underlying the orderly prosecution and defense of legal claims"
"inaccuracy and trustworthiness"
26(a)(1)(E)
26(a)(2)(A) Experts
26(b)(1) In General
26(a)(2)(B)
26(a)(4)
All disclosures under Rule
26(a) disclosed in writing,
signed, and served.
Disclosure accompanied by
written report
26(a)(2)(C)
Witnesses without report
guidelines
26(a)(2)(D) Time
(i) 90 days before trial date or
case ready for trial
(ii) 30 days after the party's
disclosure if solely rebutting a
26(a)(2)(B or C)
26(a)(3) Pretrial
26(a)(1)(C)
26(a)(1)(B)
Proceedings Exempt from
Initial Disclosure [List in Rules]
26(a)(1)(D)
Joined or Served party after 26f
has 30 days to disclose
26(c)