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RELEVANT CIVIL PROCEDURE AMENDMENTS, RULES, CODE

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    CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON FALL 1999

    RELEVANT CIVIL PROCEDURE AMENDMENTS, RULES, & CODE

    CONSTITUTIONAL PROVISIONS ITLE 28 OF U.S.C T

     ? 1331 Federal Question Jurisdiction Article III. Grants Federal Judicial Power

     ? 1332 Diversity of Citizenship; Amount in Controv. Article IV. Full Faith & Credit Clause

     ? 1334 Bankruptcy Cases and Proceedings Article VI. Supremacy Clause; Federal over State laws.

     ? 1337 Commerce and Antitrust Regulations

     ? 1338 Patents, Copyrights, and Unfair Competition A MENDMENTS

    ? 1343 Civil Rights Cases

     V. Federal Due Process Clause

     ? 1345 US as ? VII. Right to a Jury Trial

     ? 1346 US as ? XIV. State Due Process Clause ? 1367 Supplemental Jurisdiction

    ? 1391 Venue Generally

    ? 1404 Federal Change of Venue

    ? 1406 Cure or Waiver of Defects

    ? 1441 Actions Removable Generally

    ? 1442 Federal Officer Sued or Prosecuted

    ? 1445 Nonremovable Actions

    ? 1446 Procedure for Removal

    ? 1447 Procedure After Removal Generally

    ? 1652 State Laws as Rules of Decision

    ? 2201 Creation of Remedy

    ?2202 Further Relief; as needed

    Page 1 of 31 Robert J. Lewin

    CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON FALL 1999 FEDERAL RULES OF CIVIL PROCEDURE

     a. Scope of Rules (FRCP 1)

     b. Form of Action (FRPC 2)

     c. Commencement of Action (FRCP 3)

     d. Summons/Service (FRCP 4)

     e. Pleadings (FRCP 7)

     f. Rules for Pleadings (FRCP 8)

     g. Pleading Special Matters (FRCP 9)

     h. Form of Pleadings (FRCP 10)

     i. Signings/Sanctions (FRCP 11)

     j. Defenses/Motions (FRCP 12)

     k. Amended & Supplemental Pleadings (FRCP 15)

     l. Derivative Actions by Shareholders (FRCP 23.1)

     m. Judgments (FRCP 54)

3. Commencement of Action

     A civil action is commenced by filing a complaint with the court.

4. Summons/Service

     (a) Form

    1. Signed by clerk, seal of the court, identify the court and parties, directed to ?, name of ? and

    lawyer, statement of the time within which the ? must appear and defend, notify ? that failure to

    appear will result in default.

     2. May be amended at court’s discretion.

     (c) Service with Complaint; by Whom Made

     1. Summons and copy of complaint served together; responsibility of ?.

     2. Server must be 18 or ? may request US Marshall to serve.

     (d) Wavier of Service; Duty to Save Costs of Service; Request to Waive

     1. Waiving service does not waive objections to venue or jurisdiction.

     2. Duty to avoid undue costs in service by waiving service. Notice & Request for

    waiver:

     a. in writing to ? or officer of corporation.

     b. first-class mail or other reasonable means.

     c. complaint and waiver served together

     d. tell ? of consequences of failure to comply with request.

     f. give ? reasonable time to return waiver:

     at least 30 days from day on which request is sent (60

    outside US)

     Court will impose costs for service where no good cause is shown and waiver is not

    signed.

     3. ? who returns waiver has 60 days from date on which waiver is sent to answer

    complaint.

     90 days for ?s outside US.

     (e) Service Upon Individuals Within a Judicial District of the US

     Service may be effected in any district in the US:

    1. pursuant to the law of the state in which the district court is located, or in which service is effected

    2. or by delivering a copy of the summons and of the complaint to the individual personally or by

    leaving copies at the individual’s dwelling house or usual place of abode with someone of suitable

    age and discretion residing there or by delivering a copy to a person authorized by appointment or

    by law to receive service.

     (f) Service Upon Individuals in a Foreign Country

     Service may be effected in a place not within the US by:

     1. an internationally agree means reasonably calculated to give notice

     2. or by:

     a. the laws of the foreign country for service in that country

     c(i). personal service on the individual if permitted

     (g) Service on Infants and Incompetents

     As prescribed the law of the state in which service is being effected.

    Page 2 of 31 Robert J. Lewin

    CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON FALL 1999

     (h) Service on Corporations and Associations

     Service will be effected by:

    1. as prescribed by (e)(1) or (e)(2), or by delivering a copy of the summons and of the complaint to

    an officer, a managing or general agent, or to anyone authorized by appointment to receive service

     2. in a place not within the US, by all of (f) except for personal delivery.

     (i) Service on the US

     1. Service can be affected by:

    a. delivering a copy of the summons and of the complaint to the US attorney of the

    district where the action is occurring.

    b. also sending a copy of the summons and of the complaint by registered or certified

    mail to the US Attorney General

     3. Court must allow a reasonable time to cure failure to fully serve the US

     (j) Service Upon Foreign, State, or Local Governments

     1. Pursuant to 28 USC ?1608

    2. Copy of the summons and of the complaint to its CEO or by serving based on the laws of that

    state.

     (k) Territorial Limits of Effective Service

     1. Service of summons or a waiver is effective to establish jurisdiction over a ?

    a. who can 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 within 100 miles from the

    place from which the summons issues.

    c. who is subject to the federal interpleader jurisdiction under 28 USC ?1335

    2. If service is consistent with the Constitution, service is effective with respect to claims arising

    under federal law, to establish personal jurisdiction over any ? who is not subject to general

    jurisdiction.

     (m) Time Limit for Service

    1. Service not made within 120 days after filing of complaint may result in dismissal except where ?

    shows good cause.

     (n) Seizure of Property; Service of Summons Not Feasible

     1. Court may attach property.

    2. Where personal jurisdiction cannot be obtained with reasonable efforts, court may assert

    jurisdiction over ?’s assets within the district.

7. Pleadings Allowed; Form of Motions

     (a) Pleadings

     Types of pleadings:

    Complaint, answer, reply to a counterclaim, answer to a cross-claim, if the answer contains a

    cross-claim, 3rdrd party complaint if a person is summoned under Rule 14, and a 3 party answer

8. General Rules of Pleading

     (a) Pleading sets forth claim for relief and contains:

     1. short and plain statement of the grounds upon which the court’s jurisdiction

    depends.

     2. short and plain statement of the claim showing that the pleader is entitle to relief.

     3. a demand for judgment for the relief the pleader seeks.

     (b) Defenses; Form of Denials

    1. Statements of denials to each individual claim and admit or deny the averments on which the

    opposition relies.

    2. General denials are permissible when the pleader intends to controvert all complaints averments

    subject to Rule 11 sanctions.

     (c) Affirmative Defenses

     1. All affirmative defenses should be set forth in a pleading.

     (e) Pleading to Be Concise and Direct; Consistency

     1. Averments of pleadings must be simple, concise, and direct.

9. Pleading Special Matters

10. Form of Pleading

    Page 3 of 31 Robert J. Lewin

    CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON FALL 1999 11. Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

     (a) Signatures

     Every paper filed must be signed by the lawyer or the ? representing himself.

     (b) Representations to the Court

    Papers brought to the court are done so with the expectation they are, to the best of the person’s

    knowledge:

    1. not being maintained for some improper purpose, such as to harass or cause increased costs

    in litigation.

    2. nonfrivolous

    3. brought with evidentiary support for the claims, or with the belief that discovery would lend

    evidentiary support for the claims

    4. warranted in their denials of averments based in factual proof.

     (c) Sanction

    When the court finds a violation of (b), the court may impose appropriate sanctions on the party

    responsible for the violation:

    1. How Initiated

     a. By Motion of Opposing Lawyer

     b. On Court‟s Initiative

    2. Nature of Sanction; Limitations

     Sanctions limited to what is sufficient to deter repetition of such conduct

    by others.

    12. Defenses and Objections When and How Presented By Pleading or Motion- Motion for Judgment on the Pleadings

     (a) When Presented

     1. ? shall serve an answer:

     a. within 20 days after being served with the summons

    and complaint

    b. where service was waived, within 60 days after the date the request for waiver was

    sent, or 90 days to a ? outside the US.

     2. When served with a cross-claim, 20 days to answer.

     When served with a counter-claim, 20 days to answer.

     3. US has 60 days to respond to a complaint, counterclaim, cross-claim, etc.

     4. Service of a motion alters periods as follows:

     a. denial of motion, pleading must be served in 10 days.

     b. motion for a more definite statement granted - 10 days.

     (b) How Presented

    All motions made in responsive pleading if required, except these below, which must be made

    before pleading

     1. lack of subject matter jurisdiction

     2. lack of personal jurisdiction

     3. improper venue

     4. insufficiency of process

     5. insufficiency of service of process

     6. failure to state a claim on which relief can be granted

     7. failure to join a party under Rule 19

     (c) Motion for Judgment on the Pleadings

    Any party may move for judgment on the pleadings may become Rule 56 summary judgment

    motion based on presentation of material outside of pleadings.

     (f) Motion to Strike

     Court can strike insufficient, redundant, or immaterial defenses or matter.

13. Counterclaim and Cross-Claim

     (a) Compulsory Counterclaims

     Pleading must state a counterclaim which arises out of transaction or occurrence

    (nucleus of facts)

     (b) Permissive Counterclaims

    Pleadings may state counterclaims not arising out of the transaction or occurrence. (nucleus of

    facts)

     (g) Cross-Claim Against Co-party

     A pleading may state a cross-claim arising out of the transaction or occurrence

    (nucleus of facts).

    Page 4 of 31 Robert J. Lewin

    CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON FALL 1999

     (h) Joinder of Additional Parties

    People not privy to original action may be made parties to a counter-claim or cross-claim

    according to Rule19 and Rule 20.

14. Third Party Practice

    rd (a) When ? May Bring in 3 Party

    Any time after commencement of the action a defending party may serve a person not a party to

    the original motion.

    rd3 party ? may bring in another ? without leave of court if process is served within 10 days of

    original answer to complaint.

    rd (b) When ? May Bring in 3 Party

    rdWhen a counterclaim is asserted against a ?, ? may bring in 3 party under same circumstances

    rdunder which a ? could bring in 3 party.

15. Amended and Supplemental Pleadings

     (a) Amendments

    Pleading may be amended anytime until an answer is filed or before it is placed on the trial

    calendar.

    Otherwise, leave of court must be obtained.

     (b) Amendments to Conform to the Evidence

     Issues not raised in pleadings may be tried by either express or implicit consent of

    the parties.

     When objections arise over whether evidence is within the issues made by the pleadings, the

    Court may allows the pleadings to be amended.

     (c) Relation Back of Amendments

     Amendment of a pleading relates back to the date of the original pleading when:

    1. relation back is permitted by the law that provides the statute of limitations applicable

    to the action.

    2. the claim or defense asserted in the amended pleading arose out of the conduct,

    transaction, or occurrence set forth or attempted to be set forth in original pleading.

    3. the amendment changes the party or the naming of the party against whom the claim is

    asserted if (2) is satisfied and, within the period provided by Rule 4(m) for service, the

    party is brought in by amendment

    a. is properly served.

    b. knew or should have known that, but for a mistake concerning the identity

    of the proper party, the action would have been brought against the party. 18. Joinder of Claims and Remedies

     (a) Joinder of Claims

     A party asserting claim to relief can join as many claims together as they have against an opposing

    party.

     (b) Joinder of Remedies; Fraudulent Conveyances

    When a claim is cognizable only after another has been prosecuted, the two may be joined into a single action,

    but the court can grant relief in accordance with the relative substantive rights of the parties.

20. Permissive Joinder of Parties

     (a) Permissive Joinder

    ?s claims may be joined if they assert any right to relief jointly, severally, or in the

    alternative in respect of or arising out of the same transaction (operative nucleus of facts)

    and if any question of law or fact common to all these persons will arise in the action.

23.1. Derivative Actions by Shareholders

24. Intervention

     (a) Intervention of Right

     Anyone may intervene in an action where:

     1. statutory law allows such an intervention; or

    Page 5 of 31 Robert J. Lewin

    CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON FALL 1999

    2. where the applicant claims an interest relating to the property or transaction

    which is the subject of the action and the applicant is so situated that the

    disposition of the action may be impede the applicant’s ability to protect the

    interest, unless the interest is already protected by the parties involved.

     (b) Permissive Intervention

     Anyone may intervene in an action where:

     1. statutory law allows such an intervention; or

    2. the applicant’s claim or defense and the main action have a question of law or fact

    in common.

     (c) Procedure

     A person desiring to intervene does so through procedure stated in Rule 5.

41. Dismissal of Action

     (a) Voluntary Dismissal: Effect Thereof

     1. By ?; by Stipulation Action may be dismissed by the ? without order of court

     i. by filing a notice of dismissal at any time before service of an

    answer by ?; or

     ii. by filing a stipulation of dismissal signed by all parties who

    appeared in the action.

     2. By Order of Court Actions will be dismissed at ?’s order where the court deems

    proper.

    Where a counterclaim has been pleaded by a ? prior to service of ?’s motion to dismiss, ?’s claim

    will not be dismissed unless ?’s counterclaim can stand on its own.

     (b) Involuntary Dismissal: Effect Thereof

     If ? doesn’t follow the rules, ? can move for dismissal of an action or claim against that ?.

    A dismissal in this manner is an adjudication based on the merits except in cases of dismissal for lack of

    jurisdiction, for improper venue, or for failure to join a party under Rule 19. rd (c) Dismissal of Counterclaim, Cross-Claim, or 3 Party Claim rd Rule 41 applies to dismissal of any counterclaim, cross-claim, or 3 party claim.

54. Judgments

     (a) Definition; Form

     Judgment is a decree or an order for which an appeal lies.

     (c) Demand for Judgment

     Judgment by default can not be different in kind or exceed amount asked for.

     Judgment can be given where default occurs, even if not demanded in pleadings.

55. Default

     (a) Entry

     When a party fails to plead, clerk enters party’s default judgment.

     (b) Judgment

     1. By clerk where amount is easily ascertainable.

     2. By the court in all cases where amount is not easily ascertainable.

     (c) Setting Aside Default

     For good cause, a court can set aside a default judgment.

     (d) ?s, Counterclaimants, and Cross-Claimants

     55 applies to all ?s, counterclaimants, and cross-claimants, subject to limitations of 54(c)

     (e) Judgment Against the US

    Default judgment cannot be entered against the US except where claimant establishes a claim to relief by

    evidence satisfactory to the court.

56. Summary Judgment

     (a) For Claimant

    After 20 days from commencement of action, move for summary judgment with or without supporting

    affidavits.

    (b) For Defending Party

    Can move for summary judgment at any time with or without affidavits.

    Page 6 of 31 Robert J. Lewin

    CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON FALL 1999

60. Relief From Judgment or Order

     (a) Clerical Mistakes

     Can be corrected by the court at any time on its own initiative or motion of either party.

     (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc.

    On a motion and on terms that are just, the court may relieve a party from a final judgment for the following

    reasons:

     1. mistake, inadvertence, surprise, or excusable neglect;

     2. newly discovered evidence which by due diligence could not have been discovered

    earlier.

     3. fraud

     4. the judgment is void

    5. the judgment has been satisfied, released, or discharged, or a prior judgment on which it is

    based has been overruled.

     6. any other reason justifying relief from the operation of the judgment.

     This motion must be brought in a reasonable time; for # 1, 2, and 3: within one year.

    Page 7 of 31 Robert J. Lewin

CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON FALL 1999

    SUMMONS/SERVICE OF PROCESS 1. What must be included? i. Summons (issued by court clerk), and; ii. Copy of the Complaint. 2. Who may serve? i. Any person not affiliated with the suit over 18 years of age; or ii. US Marshall (if court ordered) 3. How is service handled within the US? Individuals 4(e)(1) i. Pursuant to the law of the state in which the district court is located ii. Pursuant to the law of the state in which service is effected iii. At dwelling house with person of suitable age and discretion who is living there iv. Personal service v. to an authorized agent vi. Cannot be mailed; insufficient notification. Corporations 4(h)(1) i. Pursuant to the law of the state in which the district court is located ii. Pursuant to the law of the state in which service is effected Note: While state statutes tend to vary, most permit notice to be served on an official or manager of the corporation, as long as it is reasonably calculated to apprise interested parties of the pendency of a suit. iii. an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process. Infants & Incompetents i. See 4(g) 4. How is service handled outside the US? See 4(f) 5. Where may notice be served? i. Wherever the state court of general jurisdiction can get personal jurisdiction look to state long arm statutes then do minimum contacts analysis. ii. Wherever authorized by US statute. iii. 4(k)(1)(b) permits service within 100 miles of courthouse. Note: Permits exercise of personal jurisdiction over ?s added under Rules 14 and 19 if they are served within 100 miles of the courthouse, even across state lines. iv. For federal claims only, 4(k)(2) allows federal courts to take jurisdiction to the maximum extent allowed by the Constitution if the state long-arm statute will not reach that far. In federal question cases, jurisdiction exists as long as the ? has minimum contacts with the US as a whole, where no state court would have jurisdiction. 6. Time Constraints on Service of Process i. Within 120 days of filing of complaint unless ? shows good cause. 7. Effect of a Signed Waiver of Service of Process i. Gives ? 60 days (instead of 20) to answer from the day the waiver is sent. ii. waiver of service waives 12(b)(4) and 12(b)(5) defenses. iii. Rules of Waiver of Service of Process a. written request for waiver. b. first class mail or other reliable means. c. copy of complaint, identifying court in which suit has been filed. d. informs ? of consequences of not complying with the waiver. e. sets forth the date on which the waiver is sent. f. includes an extra copy of notice and request with a prepaid means of responding. g. allows ? a reasonable time to return waiver, no less than 30 days within the US and 60 days for ?s outside the US. h. When the ? files a waiver of service with the court, action proceeds as though service was affected constitutionally. 8. Proof of Service in Absence of Waiver? Rule 4(l) i. If no waiver exists, server must make an affidavit as proof of service (unless done by US Marshall) ii. Failure to file affidavit does not invalidate service; court may allow proof of service to be amended or added. 9. NOTES i. Actual notice is not a substitute for the rules.

    (See National Dec. Co. v. Triad Holding Corp.) If a state law or federal rule is on point, it must be followed. Rule 4 is inflexible regarding strict compliance. a. Rule 4 discourages rule evasion b. Rule 4 provides uniformity in the system of providing notice c. Courts are comparatively passive; notice req. are leg. domain. Congress makes the laws; the courts interpret them. ii. Service through Fraud is invalid. A ? cannot induce a ? to enter a jurisdiction for the sole purpose of serving them with notice. Once that person is in a state voluntarily, however, deception may be used to get the person into the opening. Notice must contain reasonably complete information about a person’s right.

    Page 8 of 31 Robert J. Lewin

    IVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON FALL 1999

    PLEADING a. The Complaint

    Modern pleading rules attempt to provide notice of the nature of a claim or defense.

     1. Form of the Complaint: C 10(a) requires:

     i. Name of the Court

     ii. Title of the Action (by party’s names)

     iii. Docket Number/Space for docket number if unknown..

     iv. Identity of document designation under 7(a); “complaint” or “answer”, etc. . .

     10(b) requires: (clearly state what’s in the document)

     i. Numbered paragraphs limited as far as practical

     ii. Each claim on separate transactions made on separate counts.

     2. Elements of the Complaint

     8(a)(1) requires:

     i. a short and plain statement of the claim showing ? is entitled to

    relief.

    Gillispie v. Goodyear Service Stores: Facts constituting cause of action must be

    set out in the complaint to determine whether ? is entitled to relief.

    Dioguardi v. Durning: Courts embrace a liberal view of notice pleading whereby

    no complaint will be held insufficient for failure to state a claim unless „the pleader makes

    allegations that show on the face of the complaint some insurmountable bar to relief.”

    Garcia v. Hilton Hotels Int’l, Inc.: Where such a short and plain statement is

    missing, court can grant 12(e) motion for more precise statement on which relief

    is to be granted.

    ii. a short and plain statement of the grounds upon which the court’s jurisdiction depends;

    unless already established

     For federal courts fed. ques. (?1331) or diver. juris. (?1332)

     8(e) requires:

    i. each averment be simple, concise, and direct no technical forms of pleading or

    motions are required.

     ii. allows claims or defenses that are made in the alternative,

    regardless of consistency.

     3. Pleadings

     7(a) limits pleadings generally to:

     i. the complaint

     ii. an answer

     iii. reply to any counter-claim or cross-claim

     4. Pleading Special Matters

     9 requires heightened pleading requirements for Fraud, Mistake, and Civil Rights

    claims:

     i. Denny v. Carey: Rule 9 pleadings require “slightly more notice” than under Rule 8.

     5. Pleading Damages

     9(g) requires that when items of special damages are claimed, they be specifically

    stated.

    i. Ziervogel v. Royal Packing Co.: Attempts to recover for injuries resulting from

    heightened blood pressure and shoulder damage not stated in the complaint are not

    permitted under 9(g).

     6. The Prayer for Relief

    8(a)(3) requires a demand for judgment for the relief the pleader seeks.

    54(c) allows relief for a party who wins the final judgment, even if relief is not requested.

    Page 9 of 31 Robert J. Lewin

CIVIL PROCEDURE OUTLINE FOR PROFESSOR PETERSON FALL 1999

    i. Bail v. Cunningham Brothers, Inc: though a party was not successful in demanding

    relief in his pleading, he is entitled to relief under evidence, and relief can be given.

    Page 10 of 31 Robert J. Lewin

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