Civil Procedure Attack Outline

I. Jurisdiction II. Erie III. Remedies IV. Pleading

1. Subject Matter Jurisdiction

2. Personal Jurisdiction

5. Venue

3. Due Process

4. Service of Process (Notice)

6. Removal

7. Waiver

Substitutionary RemediesCompensatory DamagesLiquidated, Statutory, and Punitive Damages

2. Specific RemediesRemedial Hierarchy

3. Declaratory Relief

1. Stating a claim under the federal rules (R8)

2. Responding to the complaint

3. Ethical limitations and R11

4. Amending the pleadings4. Financing LitigationAmerican RuleEnglish RuleInsurance and contingency feesPublic subsidies/ Professional CharityFee Shifting

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I. Jurisdiction Checklist

Subject Matter Jurisdiction? (FEDERAL QUESTION)

1Federal

Question 18 U.S.C. §1331

United States Constitution, Article III: Federal Courts Are Courts of Limited

Federal Question Basics: 28 U.S.C. §1331

Does the claim arise under the constitution, treaties, or laws of the U.S.? Is the complaint well plead? E.g., does NOT plead possible defenses as basis for FQ? Remember, NO $ Amount limit: Can have SMJ over a $1 dispute. Federal Jurisdiction may be exclusive to federal court (e.g., patent or copyright claims); or Federal Jurisdiction may be concurrent with state court jurisdiction (e.g., civil rights or federal

employment liability act (FELA) claims), subject to the right of removal.

Federal Question Flow Chart

Grable & Sons v. Darue:Federal court has federal question jurisdiction over state

law claim if it necessarily states federal issue, actually disputed and substantial, which federal forum may entertain

without disturbing congressionally approved balance of

Yes

No

Yes

Does the π’s well pleaded complaint allege an express or implied federal cause of action?

NoYes

Does the federal law that is an element authorize a private right of action?

Does the π’s well pleaded complaint allege a state law cause of action in which federal law is an essential element?

There is NO FQJ.There is FQJ

Yes

No

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DIVERSITY OF CITIZENSHIP BASICS

1) COMPLETENESS: Diversity must be complete. There cannot any D’s or P’s that are residents of the same state. All π’s must be different from all ’s.

2) DATE: Diversity is calculated as of the date the action was instituted.3) CITIZENSHIP (Domicile)

a) PERSONS: Where you were born and continues through your life unless:i) You physically change your state; andii) You have the intention of remaining in the new state for the indefinite future.iii) If person has multiple homes in different states, look of that person’s center of gravity by looking at:

(1) Where does the person live?(2) Where is the family?(3) Where does the person pay taxes?(4) Where does that person work?(5) Where are the cars licensed?(6) Where does the person vote?

b) CORPORATIONS:: Every corporation has two domiciles: i) state of incorporation; and ii) its principle place of business (usually where the corporate headquarters is located. Two tests for principle place

of business:(1) Nerve Center Test – place where corporate decisions are made; or(2) Muscle (Plurality) Test - place where the corporation does most of its manufacturing or service providing.

c) UNINCORPORATED Associations (e.g., labor unions, partnerships): Cumulate domiciliary state of each member. So, a national labor union like the Teamsters could never pass the federal diversity test because it has members in all 50 states.

d) PARTIES IN REPRESENTATIVE ACTIONS (e.g., representative of a child, probate, or derivative actions or class action suits: i) Classical Rule for Derivative Actions & Class Actions: diversity is based on the citizenship of the representative.ii) Modern Rule for Probate and All Others: diversity is based on the citizenship of the represented party.

4) AMOUNT IN CONTROVERSY: must be over $75,000, exclusive of interest and costs but inclusive of punitive damages.

United States Constitution, Article III: Federal Courts Are Courts of Limited

2Diversity

18 U.S.C. §1332

SUBJECT MATTER JURISDICTION?(DIVERSITY)

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SUPPLEMENTAL JURISDICTION CREATED BY JUDICIAL INTERPRETATION AND CODIFIED IN 28 U.S.C. §1367

3.Supplemental Jurisdiction

18 U.S.C. §1367

SUBJECT MATTER JURISDICTION?

(SUPPLEMENTAL )

SUPPLEMENTAL JURISDICTION BASICS

1) §1367: Supplemental jurisdictiona) §1367(a): Matters originating from a common nucleus of operative facts are considered part of the same case or

controversy for Article III purposes.b) §1367(b): Limits reach of Supplemental jurisdiction in diversity cases — exercise of jurisdiction must be

consistent w/§1332 (diversity statute)i) No supplemental jurisdiction; must have independent jurisdiction for claims by against persons made parties by:

(1)Rule 14 (Impleader)(2)Rule 19 (Compulsory Joinder of Parties)(3)Rule 20 (Permissive Joinder of Parties)(4)Rule 24 (Intervention)

c) §1367(c) — gives Court discretion to hear cases.i) Says that the Court may decline to exercise supplementary jurisdiction if:

(1)Claim raises a novel or complex issue of state law (in Ameriquest the court decided it could rule despite this based on existing precedent…truly discretionary.)

(2)The non-fed claim substantially predominates over the claim(s) over which the dc has original jurisdiction(3)The Court has dismissed all claims over which it has original jurisdiction(4) In exceptional circumstances – other reasons

ii) Decisions may be appealed

d) §1367(d) — Statute of Limitations will be tolled so long as federal court is hearing the claim, then + 30 days to file state claim (unless State allows longer)i) Some states have savings statutes- that toll the SOL under circumstances where a supplemental jurisdiction claim is

made- P then has a limited amount of time to refile in state if dismissed.

Remember, §1367(b) applies ONLY if diversity is the sole

basis for being in federal court.

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20(π), 23

Supplemental Jurisdiction Flowchart

18 U.S.C. §1367

Yes

Same case or controversy?

NoNo SMJ

This is a basic requirement of

§1367(a).

Federal Questionor

Diversity?

Fed. Ques. §1367(b) limitation does not apply to Fed

Ques.SMJ

Party added under what Rule?

14 19 20 () No SMJ

This is the §1367(b) limitation.

Claim by π or ? §1367(b) limitation

does not apply to claims brought by .SM

J

Diversity

TROUBLE!

The literal language of §1367 lets the claim in. But the legislative history

indicates that Congress wants the claim to stay out. The Courts of Appeal are

split. The Supreme Court granted certiorari in 2000, Justice O’Connor

recused, and the remaining justices split

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PERSONAL JURISDICTION

CONSTITUTIONAL BASES:

14TH AMENDMENT

DUE PROCESS REQUIREMENT

ARTICLE IV, §1:FULL FAITH & CREDIT CLAUSE

Notice And Opportunity to Be Heard

Full Faith and Credit Will Be Given in Each State

STATUTORY BASIS

State FederalLong Arm Statute

Rule 4(k)(2)

Can Restrict Constitutional Personal Jurisdiction But

PHYSICAL PRESENCE IN STATE

Tag Jurisdiction Lives!

Burnham v. Superior CourtEx-Husband Served While

Visiting Kids

DOMICILE

Gordon v. Steele : Kid at College

Milliken : WY Domicile Served in CO

CONSENT

EXPRESS: Carnival Cruise Lines

IMPLIED: Hess v. Pawloski

WAIVER: Insurance Corp of Ireland Contract / Agent Appointment / Shows up

Traditional Bases of Personal Jurisdiction

MODERN BASIS OF PERSONAL JURISDICTION

must have sufficient minimum contacts within the forum state such that maintenance of the suit does not offend traditional notions of fair play and

substantial justice.

FAIR PLAY AND SUBSTANTIAL JUSTICE

(BLIM FEW)SUFFICIENT MINIMUM CONTACTS

(CAPFI)

1. B urden on the Parties: Economic, time, relative burdens.

2. L aw: What forum’s law?3. I nterest of the State: in providing a forum for &

protecting its citizens.4. M ultiplicity of Suits: Will they all be resolved?

5. F orum: Alternative forum available? Fair & convenient?

6. E vidence: Where is the bulk of the evidence?7. W itnesses: Where are the witnesses?

1. C ause of Action: Where did the cause of action arise?

2. A ctivities: Scrutinize these activities in the forum state:

a. Systematic & Continuous = General Jurisdiction

b. Sporadic = Specific Jurisdictionc. Direct vs. Indirectd. Dangerous activity?

3. P urposeful Availement: Has purposefully availed itself of the benefits & protections of forum’s laws? (More readily found for commercial transactions. Consumer purchases NOT commercial transaction) Hanson v. Denkla.

MODERN SERVICE

Rule 4 (a-e, h, n)

Reasonably Calculated Under the Circumstances to

Give NoticeMullane v. Central

Hanover Bank

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Transfer of Venue: 28 U.S.C. Forum Non Conveniens

Possible Exam Questions

Venue Rules: 28 U.S.C. §1391

VENUE:

Underlying Policies: Judicial Efficiency; Limit Forum Shopping;

Venue in diversity cases. §

1391(a).

1. Any dist. where any resides, if all ’s reside in the same state.

2. Any dist. Where a substantial part of the controverted events occurred or where the disputed property is located. Can have venue in multiple locations.

3. Where any is subject to PJ

Venue in all other cases. §

1391(b).

1. Same as in diversity cases, above.

2. Same as in diversity cases, above.

3. Where any can be found only Venue of corporate ’s §

1391(c).

1. Anywhere corp. is subject to PJ.

Venue for aliens 28 U.S.C. §

1391(d).

1. Any alien, incl. alien corps., can

Federal Courts NEVER transfer to State Courts. Use FNC in such

case.

State Courts NEVER transfer to federal Courts or to different States. Use FNC in such case.

§1404 Balancing Test

Convenience of parties & witnesses + Interests of justice must substantially outweigh π’s interest in choice of forum.

Choice of Law: Diversity Cases

Only

Laws of the transferring state apply unless venue was improper, in

Venue Exam Tricks

Transferring Court can only send a case to a court where the “action could have been commenced or initiated.” Therefore, the receiving Court must have all 3, even if the transferring Court doesn’t:.

1. Subject Matter Jurisdiction2. Personal Jurisdiction3. Venue

Public vs. Private Factors -

Balancing Test

Private Interest Factors 1.Access to sources of proof 2.Ability to compel attendance of

witnesses 3.Convenience to voluntary

witnesses 4.Difference in substantive law that

will be applied in new forum is not decisive in dismissing on grounds of FNC, but could be relevant if the law in the alternative forum were completely inadequate. Piper.

Public Interest Factors 1.Local interest in having disputes

resolved locally 2.Court congestion

General RuleFNC is tough on π’s, especially in light of statutes of limitation and Pers. Juris. Courts know this and

won’t grant FNC unless:

1. There is an alternative forum;2. waives statute of limitations

defense;3. consents to jurisdiction in

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No Removal for In-State Defendants in Diversity-

Only Cases

Removal: 28 U.S.C. §1441

Federal Question Flow Chart

No

STATE Court FEDERAL Court

4. State to Federal ONLY; 5. ALL ’s must consent; 6. ORIGINAL ’s only; no

counterclaim ’s

1. Completely Discretionary2. Must have been qualified to grant

original jurisdiction.3. May grant supplemental

jurisdiction as long as at least one separate and independent federal claim eligible for removal.

Federal Question ClaimsPass Through Federal Question

Filter28 U.S.C. §1331

Non- Federal Question ClaimsPass Through Supplemental

Jurisdiction Filter28 U.S.C. §1367

Yes

Yes

Does the π’s well pleaded complaint allege an express or implied federal

cause of action?

Yes

Does the federal law that is an element authorize a private right of

action?

Does the π’s well pleaded complaint allege a state law cause of action in

which federal law is an essential element?

There is NO FQJ.

There is FQJ

No

§1441(a)Court Must

Hear

Same Case or

Common Nucleus of

Meets Supplemental Jurisdiction

Requirements under §1367?

§1441(a)Court May Exercise

or Decline Per Authority Granted

under §1367(c)

Not Part of Same Constitutional

Case

Separate & Independent

Claim?

Yes No

§1441(c)Court May Keep

OrCourt May Remand

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Waiver

What May NEVER Be Waived?

SMJ Is A Constitutional Issue and Cannot Be Waived.Parties to an Action May NEVER Consent to Waiver of SMJ

What May Be Waived?

Personal JurisdictionNoticeService of ProcessVenue

Consolidation of DefensesRules 12(g) and 12(h)(PG 39)(SEE PLEADING)

Is state law substantive / black letter law?

YES

State law applies (f/ Erie & RDA)

NOFed Rule on Point?(look at twin aims of Erie before deciding)

Possibly/No(Grey Area)

Hanna Holding--Is there a conflict between the Fed Rule and the State Practice?--If no, the court can apply both with no problem--If yes, is it constitutional and in line with the Rules Enabling Act? (Doesn’t abridge, enlarge, or modify any substantive right)--If yes, then use the Fed Rule--If no (it DOES abridge, enlarge, or modify a substantive right), then use the State Rule

Valid if reasonable person would consider it procedural

Do BOTH

Byrd TestIs state rule bound up with (implementing of) state created rights& obligations? Does it regulate primary behavior?

Hanna DictaAnalyze in light of twin aims of Erie.1. Forum Shopping?2. Inequitable admin. of the laws?

Y YN N

State lawState law Fed lawRule of form & mode.BALANCE

Fed. Countervailing Interests (for fed law)(always have uniformity, but weak on its own. Byrd was judge/jury relationship which outweighed outcome determinacy)

Outcome determinative test (for state law)If outcome would be different depending on which law applies (i.e. statute of limitations is very determinative if its run in state and not fed)

YES

Erie Doctrine Flowchart1) The discouragement of forum shopping and 2) avoidance of inequitable

administration of the laws

Effect of “on the merits” adjudication in federal court1. Adjudication upon the merits, under Fed. R. Civ. Pr. 41(b) only has the effect of preventing a re-filing in the same district court in which the case was earlier filed.2.The Full Faith and Credit Clause does not mean that states can give Federal court judgments the same effect they would give their own State court judgments, but must grant them the same effect the Federal court would. them the same effect the Federal court would

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1. SUBSTITUTIONARY (LEGAL) REMEDIES (TYPICALLY GETS JURY TRIAL)

a. Compensatory damagesi. Economic

ii. Non-economic: Emotional distress, pain and suffering, etc. Typically three times the amount of economic damages

b. Liquidatedc. Statutory

i. Example, Federal truth in lending; copyrightsd. Punitive

i. Courts reviewing punitive damages awards must consider three guideposts:

1. (1) The degree of reprehensibility of the defendant's misconduct;

a. Dissimilar acts independent from the acts upon which liability was premised may not serve as a basis for punitive damages. However, similar acts MAY be a valid basis.

b. If state (A) has a law, acts that occurred in violation of it outside of (A) may not be the basis for punitives

2. (2) The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and

3. (3) The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

ii. Amount of punitive damages:1. Single digit ratio to damages recommended.2. Presumption against damages that exceed single

digits. (so 9x is most)3. Can overcome ratio presumption when there is a

particularly egregious act but it only caused a small amount of economic harm.

FINANCING LITIGATION1. American Rule

a. Hourly flat rateb. Legal Insurancec. Contingency Fee

2. English Rulea. Contractual fee shiftingb. Common law/ Common Fundc. Fee shifting statutes (ex., §1983)

3. Fee shifting1. By contract

a. May be asymmetrical- but often interpreted as symmetrical

2. By common lawa. When the P has brought a frivolous suit.

3. By statutea. Some statutes authorize courts to award fees to

parties "in any action which has resulted in the enforcement of an important right affecting the public interest." Example- civil rights cases (1988(b))

b. NOT symmetricali. Exception: Fraudulent, frivolous, or groundless

claims.c. Catalyst Theory generally rejected:

i. A party may only be considered a “prevailing party” for the purposes recovering attorney's fees and costs under applicable federal statutes if that party has secured a judgment on the merits or a court-ordered consent decree. (Thus they are not “prevailing” if D voluntarily changes behavior- and are thus not entitled to attorney’s fees(when suing for an injunction, not money damages)).

ii. Counter argument to this is that it creates an escape hatch that allows a defendant to escape a statutory obligation to pay a plaintiff's counsel fees, even though the suit's merit led the defendant to give the plaintiff the redress sought in the complaint.

d. Waiver of statutorily awarded fees: A federal - 11 -

III. Remedies

e. Others; Replevin, Ejectment, Writ of Mandamus, Habeas Corpus

2. SPECIFIC (EQUITABLE) REMEDIES (TYPICALLY GETS BENCH TRIAL)

a. Injunctionsb. Constructive trustc. Recessiond. Accounting actione. Quite Title

3. Remedial hierarchya. Rules of priority

i. Inadequacy of remedy test. (are $$ damages inadequate?)

ii. Balancing test: The determination of whether to issue an injunction involves a consideration of the hardship on the plaintiff if relief is denied as opposed to the hardship to the defendant if relief is granted.

iii. Very fact specific; requires you to ask, what if?4. Declaratory relief

a. May be chosen even if other legal options are availableb. Under the DJA 28 USC §2201, 2202, parties may seek a

declaration of their rights without coercive relief.c. Not available to resolve hypotheticalsd. Serves as basis for res judicada- binding.

1. TEMPORARY RESTRAINING ORDERS 1. Rule 65- May be issued w/o notice to the adverse party in limited

situations:a. Only if specific facts clearly show that immediate and

irreparable injury, loss, or damage will result before the adverse party can be heard in opposition, AND

b. The movant certifies in writing any efforts made to give notice and the reasons why it should not be required.

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2. Other forms of provisional relief:i. Attachment

ii. Garnishment3. Due process; replevin, and property interest.

a. Due process under the Fourteenth Amendment requires that

court does not have a duty to reject a proposed settlement because it includes a waiver of statutorily authorized attorney's feesi. The question is instead the overall fairness of

the settlement agreement.ii. Court may reject waiver if defendant had no

realistic defense on the merits, or if the waiver was part of a vindictive effort to teach counsel a lesson that they had better not bring such cases

4. Offer of judgment (R68)a. A defendant may offer to allow judgment on

specific terms, with cost then accrued, at least 14 days before trial.

b. If P rejects:c. And award is SMALLER than offer, cost are

tolled at the time the offer was made.d. And award is LARGER than offer, P gets full cost.

____________________________________________________________PROVISIONAL REMEDIES1. Preliminary Injunctions

a. Rule 65- The court may issue a PI only on notice to the adverse party.

b. Appeals court has limited review of preliminary injunctions, limited to

i. Error of lawii. Abuse of discretionc. Often times the decision about a preliminary

injunction will essentially end the case.d. 65(C) requires that movant of a PI or TRO post a

bond as security in an amount that the court considers proper to pay the cost and damages sustained by any party found to have been wrongly enjoined or restrained.

i. However, some courts will make an exception if the movant cannot afford the bond- either waiving the requirement, or making it very small.

ii. The only recourse a wrongly restrained or enjoined party has against the order is against the bond- if there is no bond, they are SOL.

e. Regular test:i. Four factors must be met before a preliminary

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affected parties in a replevin action must be notified in a timely manner and given an opportunity to be heard prior to a prejudgment seizure. This applies to both permanent and temporary deprivations.

b. The requirements of the 14th amendment are only applicable to when there is state involvement. Thus, private actors may repo without a hearing. (if done lawfully and peacefully)

c. There are “extraordinary situations” that justify postponing notice and opportunity for a hearing:

i. The seizure has been directly necessary to secure an important governmental or general public interest

ii. There has been a special need for very prompt actioniii. The state has kept strict control over its monopoly of legitimate

force: the person initiating the seizure has been a government official responsible for determining that it was necessary (i.e, internal revenue, national war effort, protection against bank failure, Food and drug control)

d. Three factors for determining if an individual has received due process:(1) The private interest that will be affected by the official action, (2) The risk of an erroneous deprivation of such interest through the procedure used and the probable value, if any, of additional or substitute procedural safeguards. (3) The governments interest and the burden on it of following a different procedure.

injunction is issued:i. (1) the plaintiff will likely suffer

irreparable harm absent injunctive relief; (SC rejects more lenient “possibly” test)

ii. (2) the plaintiff is likely to prevail on the merits; (rejected in alternative test)

iii. (3) the defendant will not be harmed more than plaintiff is helped by the injunction; and

iv. (4) granting the injunction is in the public interest.

ii. Alternative test :i. The party seeking a preliminary injunction

does not have to prove that it is reasonably certain to succeed on the merits.

ii. Instead, the injunction is proper if the harm that would issue absent a preliminary injunction is sufficiently serious, even where there is only a fair chance of success on the merits.

iii. Alt. test is in doubt.

PLEADINGFiling a complaint1) Requiring and forbidding specificity in pleading

a) Rule 8(c) requires (1) a statement of the basis for the court’s jurisdiction, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a statement of the relief the plaintiff is seeking.i) “Basis for the court’s jurisdiction”

(1) The complaint must contain allegations supporting the courts subject matter jurisdiction.(2) Form 7 provides an adequate jurisdictional pleading. (PG 173)(3)

ii) “short and plain statement”(1) For most claims, not all elements or facts are needed. May plead generally. If the form is in the FRCP, it is

sufficient. Judges are to construe the complaint liberally. Pleadings must include generally include sufficient support for the claims included.

(2) For complaints that are not in the forms…the complaint must contain enough factual allegations to raise the a right to relief above a speculative level. The claim must be more than possible; it must be plausible.

(3) Alternative pleading: Complaints may be inconsistent in legal theories. However, will have to elect one legal theory before judgment. (But can wait until after verdict.)(Facts may be inconsistent if pleader has a reason why they wouldn’t know which version is true)

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(4) FRCP 9(b): Fraud Claims- Requires more specificity, must provide the time, place, and nature of the alleged misrepresentations to be disclosed to the party accused of fraud. Two components:(a) Must state with particularity the circumstances constituting fraud.(b) May plead generally persons malice, intent, knowledge, and other conditions of a person’s mind.

(i) Elements of fraud- false statement, (1)D knew it was false,(2) Intended P to rely on it,(2) P relied on it,(1) and P suffered damages.

2) Allocating the elements of a claima) Whichever party has the burden of pleading an issue must also produce evidence to demonstrate that allegation.

(CANNOT use 12(b)(6) motion if its your burden to plead.)b) Specific pleading requirements are mandated by the FRCP or the statute in question. If it’s not in the statute, must rely

on how such issues are typically handled under FRCP.c) Court will look at the words of the statute the claim arises under.d) The list in rule 8(c) of affirmative defenses is not exhaustive.

e) Distinguishing Twombly from Block: Block is a burden of pleading case- but Twombly was a ‘specificity of pleading’ case.

Ethical Limits in Pleadingi. Rule 11 (b): By submitting to the court a written motion, pleading, or other paper-by signing, submitting,

or later advocating it- a party certifies that to the best of their knowledge, information, or belief, formed after a reasonable inquiry:

1. It is not being presented for any improper purpose such as to harass or delay.2. The claims, defenses, and other legal contentions are warranted by existing law or by nonfrivolous arguments for

changing or modifying it.3. The factual contentions have evidentiary support or will likely have evidentiary support after a reasonable

opportunity for further investigation or discovery4. The denials of factual contentions are warranted on the evidence or are reasonably based on belief or a lack of

informationii. An award of monetary sanctions pursuant to FRCP 11 is proper where an attorney has filed a defective

complaint without subsequently amending or dismissing the complaint.iii. Rule 11 permits the court to sanction an attorney only for conduct regarding pleadings, written motions,

and other papers that have been signed and filed in a given case. (Split of authorities on this issue- some courts say a pattern of conduct can be taken into account in fashioning a sanction- in order to create an effective deterrence ). Court may act sua sponte, or at opposing parties motion.

i. Procedure- what procedure should an attorney who wants R11 sanctions imposed follow?SAFE HARBOR PROVISION 1) 11(C)(2)Serve other party with notice ( a letter is treated

the same as a motion)2) Must be made separately from other motions 3) Must describe the conduct that violates R11, give them 21

days to correct, if fixed within 21 days the motion does not need to be filed with the court

Responding to the Complaint

1. Default (R55)a. Default damage awards: If the D defaults, the damage award cannot exceed those asked for in the complaint.

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b. A D may choose to default for the purposes of a collateral attack.2. Pre-Answer Motions

a. Motion to dismiss rule 12(b)a. (1) lack of subject matter jurisdiction

i. In assessing the merits of an FRCP 12(b)(6) motion, a court may only dismiss a complaint if, assuming all factual allegations of the complaint are true, it is clear that the plaintiff cannot prove a set of facts in support of his claim .

b. (2) lack of personal jurisdictionc. (3) Improper venued. (4) Insufficient processe. (5) Insufficient service of processf. (6) Failure to state a claim upon which relief can be grantedg. (7) Failure to join a party under rule 19

i. A motion to dismiss tolls the clock under 12(4)(a)b. Motion for a more definite statement (rare and mostly subsumed by 12(b)(6))c. Motion to strike

a. Allows party to challenge part of a pleading that fails under substantive law, even though the rest of the pleading states a claim or defense.

b. Can be used to force removal of irrelevant and prejudicial allegations in a pleading. The court will entertain a motion to strike any “redundant, immaterial, impertinent, or scandalous matter”.

d. Motion for judgment on the pleadingsa. If D does not deny any of the allegations, but just presents an excuse, or if D makes it clear that the SOL has run on

P’s claimb. Might be granted if the court thought the law clear and that further development of the facts would not be helpful to

the trier of fact.e. Waiver of defenses:

a. The following defenses are waived if not raised the first responsive pleading. (motion or answer)i. Personal jurisdiction

ii. Venueiii. Insufficient processiv. Insufficient service of process.

b. Defenses that do not have to be raised in pre-trial motions or answer:i. Subject matter jurisdiction

ii. Failure to join an indispensible partyiii. Failure to state a claim

3. Answera. Time Limits:

i. Unless a different time is specified by R12 or federal statute:a. D must answer within 21 days after being served with the summons and complaint; OR

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b. If D has timely waived service under 4(d), within 60 days after the request for a waiver was sent, or 90 days if outside the U.S.

ii. IF D files a 12(b) motion, the clock is stopped for 14 days.b. Denials

i. Failure to deny is treated as an admission.(other than the amount of damages)(only of material facts)1. General- Very difficult to do and not get caught up in R11.A general denial that denies things that are

clearly true- is ineffective and treated as an admission.( an ineffective denial won’t result in admission per se, but if the circumstances require it (such as being misleading during discovery) the court will use the power of equitable estoppel to make it an admission. Ask, was the general denial in good faith?

2. Specific- Can deny paragraphs and sentencesii. Can deny based on lack of information

c. Admissionsi. Can change mind about admissions; see Amendments.

d. Counter-claimsi. Counter claim need not be related to claim against D.

1. Compulsory: D’s counter claim based on same transaction as P’s claim- it must be asserted in the action or it will be barred.

2. Permissive: If D’s claim against P is unrelated to P’s complaint. D may choose to just do a separate lawsuit.

e. Affirmative defensesi. Failure to raise an affirmative defense in your answer will cause it to be waived. However, see Amendments.

ii. Failure to raise a new matter in the answer bars it from being brought up in trial. However, see Amendments.1. accord and satisfaction;2. arbitration and award;3. assumption of risk;4. contributory negligence;5. discharge in bankruptcy;6. duress;7. estoppel;8. failure of consideration;9. fraud;10. illegality;11. injury by fellow servant;12. laches;13. license;14. payment;15. release;16. res judicata;17. statute of frauds;18. statute of limitations; and19. waiver.20. Etc. (not exhaustive)

4. Replya. If there is a counter-claim designated as a counter-claim, P must reply.

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5. Amendmentsa. Legally insufficient- can’t just state D did XYZ, I want this relief- must have some legal theory.

i. Where despite all the facts the law provides no reliefii. Can't fix by changing the facts-no amendment will fix it. Can't fix facts to be what the court wants to hear.

b. Factually insufficienti. There aren't enough facts to meet the elements of claim.

ii. Can be fixed by amending the complaint .c. When Amendments are allowed:

i. As a matter of course1. Party may amend its pleading once as a matter of course within:

a. 21 days after serving the original (before a responsive pleading is served) or

b. If the pleading is one to which a responsive pleading is not required, such as the defendants answer, anytime within 21 days after that pleading is served.

ii. After or during trial (or after 21 days has expired)1. In all other cases, a party may amend its pleading only with the opposing party's written consent or the

court's leave. The court should freely give leave when justice so requires.2. “Freely give leave”: Leave shall be freely given in the interest of justice. (COURT SHOULD LOOK FOR

BAD FAITH, OR PREJUDICE, OR UNDUE DELAY OR ANY OTHER REASON TO DENY THE MOTION.ii. A defendant may amend its answer to deny a fact which it had previously admitted. Absent an element

of bad faith on the part of the Defendant, courts will generally grant a Defendant leave to amend his answer to a complaint unless it will clearly prejudice the ability of the Plaintiff to proceed with his suit.

1. But there is surprise to the plaintiff! The plaintiff can ask for a continuance per 15(b)(1)d. Wrong person sued

a. If the amendment changes the party or the naming of the party against whom a claim is asserted:i. If “relation back rule” is satisfied and if, within the period provided by Rule 4(m) (within 120 days of filing

complaint.)for serving the summons and complaint, the party to be brought in by amendment: (1) received such notice of the action that it will not be prejudiced in defending on the merits;(same transaction is being sued on as original) and (2) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

e. Relation back of the amendmenta. An amendment to a pleading relates back to the date of the original pleading when:

i. (A) the law that provides the applicable statute of limitations allows relation back;ii. (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence

set out — or attempted to be set out — in the original pleading.iii. The critical issue is whether original complaint gave notice to the defendant of the claim now being

assertediv. When a complaint is found to “relate back”, it is deemed to have been filed the same day the original

complaint was.f. Supplemental pleading

a. Can be used to call courts attention to material facts that occurred after the filing of the original complaint.

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b. Only permissively allowed, not as a matter of right.

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