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1

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.

Children and doors.


Try Mail
Due Process
Clause (5th
Amendment):
nor shall any
State deprive
any person of
life, liberty, or
property,
without due
process of law

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

Failure to achieve personal


service is not a person
forfeiting their interest

60 days until default from R. Sent

Waiver waives objection to absence


of service

Form 6

(2) Must pay expense of later


Service
(3) Answer within 60 days of Sent
(4) Proof not required

(A) Send to P or Agent


(B) Name Court
(C) Copy of Complaint; 2 copies
Waiver; Prepaid Return
(D) Consequences of not
(E) Date Request Sent
(F) 30 (60 foreign) days from Sent to
return

(1) Duty to Avoid Costs; Notice and


Request must:

Rule 4(d)

Waiver of Service
(60 days)

Give to Clerk to sign and Seal

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

Rule 8(a) Claim for


Relief Must Contain
(1) short and plain
statement of grounds for
jurisdiction unless not
needed
(2) short and plain
statement showing that
the pleader is entitled to
relief
(3) demand for the relief
sought

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"

Bell Atlantic Corp v. Twombly

Rule 8 (d)(1):

"requires more than labels


and conclusions, and a
formulaic recitation of the
elements of a cause of action
will not do"

Allegations must be
simple, concise,
and direct; no
technical form
required

Must "nudge their claims


across the line from
conceivable to plausible";
decently likely;
avoid discovery $$;

12(b)(6):
Failure to State a claim
upon which relief can be
granted

Ft. Note 3: Some factual


allegation for "fair notice" and
"grounds" (from Conley) to
meet 8a2 "showing"; but not in
detail
Ft. Note 6: Judicial discovery
manage't fails; FRCP hollow
rules here; arbiter cannot
know/missing info always

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"

Gillespie and Dioguardi


Bivens; Iq
"There is supervisory
liability" with public ofcials

Iqbal" "Excuses a party from pleading discriminatory intent


under an elevated pleading standard" as in the context of
fraud and mistake before it. Not "license to evade the less
rigid-though still operative- strictures of Rule 8"

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) Time


(1) Unless statute or rule:
(A) D must serve answer:
(i) w/in 21 days after service of summons or
complaint
(ii) Waived under 4(d): 60 days after waiver sent
or 90 outside USA
(B) Party must serve answer to counter/cross
claim w/in 21 days after service of said pleading

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

(C) serve reply to answer within 21 days after


service of order to reply unless court species

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...

Rule 8(c) Afrmative


Defenses
(1) responding to
pleading, must
afrmatively state any
afrmative or avoidance
defense

SEE AQUASLIDE

Same Insurance Co.

Great candidate for


Rule 15

8b3: Now updated


so that general
denial can't be used
for specic denial

Equitable Estoppel

Zielinski v.
Philadelphia Piers,
Inc.

(2) mistakes defense as


counterclaim or counter
as defense, court, if
justice requires, treat
pleading as though
correct designation and
may impose terms for
doing so

(6) if responsive pleading required,


any allegation not denied is admitted
other than damages amount; if
responsive pleading not required,
allegation is considered denied or
avoided

(5) Lacking information or knowledge


must state so and has effect of denial

(4) intends in good faith to deny only


part of an allegation, must admit the
part that is true and deny the rest

(3) Intend to deny everything inc.


juris. may use general denial; if not:
deny specic allegations or deny all
except those admitted

(2) Denial must fairly respond to


substance of allegation

(1) Respond to pleading, must:


(A) short and plain terms defense to
each claim
(B) admit or deny allegations

Rule 8(b) Defenses Admission Denial

Rule 12(a)(4) Effects of Motion


Unless court sets time:
(A) court denies or postpones to trial:
responsive pleading served w/in 14
days after notice of court action
(B) More denite granted; 14 days
after new statement served

(3) Must dismiss if SMJ

(2) 12b6; Join 19b; state


legal defense may be
raised:
(A) any pleading per 7a
(B) Rule 12c: JoPlead
(C) at trial

(1) Waives 12b2-5


(A) 12g2
(B) Failing to:
(i) make motion under 12
(ii) Include it in response
by 15a1

Rule 12(h) Waiving

(1) Right to Join motions


in Rule 12
(2) Except in 12h2&3;
party that makes a
motion under this rule
must not make another
motion under it raising a
defense or objection
that WAS AVAILABLE
to the party before but
omitted

Rule 12(g) Joining

Must be made before


pleading is required; if not
required may assert at trial
[Hamilton v. Atlas Turner,
Inc]

After pleading closed


(complaint and answer) but
early enough not to delay
trial

Rule 12(c) J on Pleadings

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(f) Strike

Rare; more denite


statement of a pleading;
usually will use 12(b)(6);
before responsive p and
details; if no response in
14 days may strike
issue

Rule 12 (e): Denite

12b1-7 AND 12c motion


must be heard/decided
before trial unless court
defers

Rule 12(i)

Failure to state a claim


upon which relief can be
granted; [wrongful ring];
even if true...

Haddle; 12(b)(6)
Demurrer

*See Chart

Rule 11 Sanctions

(b) Motions & other papers


(1) requests for court order
(A) be in writing unless during
hearing or trial
(B) particular grounds for order
(C) state relief sought

ANSWER

4
AMENDMENTS
Rule 15 Amended and
Supplemental Pleadings

Rule 15(a) Amendments


before trial
(1) Amending as a Matter
of Course (pleading) once
within:
(A) 21 days after serving it
(B) if pleading requires
responsive pleading, 21
days after serving RP or
21 days after service of
motion under 12b,e,f,
whichever earlier

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

Rule 15(b) Amendments


During Trial

Rule 15(c) Relation Back


of Amendments

(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.

(1) When an Amendment


Relates Back. An
amendment to a pleading
relates back to the date of
the original pleading when:

15(b)(2) For Issues Tried


by Consent. When an
issue not raised by the
pleadings is tried by the
parties' express or implied
consent, it must be treated
in all respects as if raised
in the pleadings. A party
may move-at any time,
even after judgment- to
amend the pleadings to
conform them to the
evidence and to raise an
unpleaded issue. Failure to
amend does not affect the
result of the trial of that
issue.

(A) the law that provides


the applicable statute of
limitations allows relation
back
(B) the amendment assets
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
(C) the amendment
changes the party or the
naming of the party against
whom a claim is asserted,
if 15c1B is satised and if,
within the period provided
by 4m for serving the
summons and complaint,
the party be brought in by
amendment:
(i) received such notice of
the action that it will not be
prejudiced in defending
on the merits
(ii) knew or should have
known that the action
would have been brought
against it, but for a
mistake concerning the
proper party's identity
Note: allows 120 days from
4m + Court awarded time

15(c)(2) Notice to the US


When the US or it's ofcer
or agency is added as a
defendant by amendment,
the notice requirements of
15c1Ci and ii are met if,
during the stated period,
process was delivered or
mailed to the US attorney
or the designee, Attorney
General of US, or ofcer or
agency
15(d) Supplemental
Pleadings
On motion and reasonable
notice, the court may, on
just terms, permit a party
to serve a supplemental
pleading setting out any
transaction, occurrence, or
event that happened after
the date of the pleading to
be supplemented. The
court may permit
supplementation even
thought the original
pleading is defective in
stating a claim or defense.
The court may order that
the opposing party plead to
the supplemental pleading
within a specied time.

12c1C
1. on notice?
2. Same conduct?
3. Should have known
against self?

John Doe: Singletary by 3rd Circuit, time

Prejudice: Idea that at


some point the other side
has to make decisions
about how to present its
case, decisions that
become difcult if the story
it has to met continually
shifts -Yeazell
1. Opposing Party
2. Jury

Beeck v. Aquaslide N'Dive


Corp
Is there prejudice to P?

(Glannon Test) Arguments against


granting leave:
1. delay in offering it
2. time to meet the claim
3. suspect strategic behavior?
How would D
defend self in court
on falsity, Zielinski?
Reckless
Misrepresentation
Theory: Must prove
would recovered
against
manufacturer
and collectible

Bad faith? 3 insurance


Companies v. manager
To accept death knell
argument:
1.) Assume that D would
prevail at trial on the
factual issue of
manufacture of the slide
2.) P foreclosed from
proceeding against other
parties if they were
unsuccessful
Trial court: "[u]nder these
circumstances, the court
deems that the possible
prejudice to the P
s is an insufcient basis on
which to deny the
proposed amendment"
Prejudicial to Defendant?

Check 16b3 conference

Hanson v. Hunt Oil


Co.
8th Circuit says
"Prejudice must be
shown"

D and his insurance


carrier had not been
lacking in diligence
Deferential to the
trial court
Equitable Estoppel
and Fraud to
continue cx of
action

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"

Sanction: Rule 11(a)

Does it have a chance under existing precedent?

Signature on documents
with email, address,
phone #
Notes: Sign or duplicate

Is there a factual foundation? 11 Notes, Subdiv (b)


and (c) Religion, accommodation, Caucasian but
no C-discrimination, Southern Confederate is
multiracial

Order imposing sanction must


describe the sanctioned
conduct and explain the basis
for sanction

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(b) Scope and Limits

26(a)(1)(E)

26(a)(2)(A) Experts

26(b)(4) Trial Prep Experts

26(b)(1) In General

Disclose based on "information


then reasonably available to it."

disclose any witness it may use


at trial

(A) May depose expert that will testify, 26a2B requires


a report then must receive it before depose

26(a)(2)(B)

(B) Read Rule; Protects drafts of the 26b3A&B and


26a2

"any non privileged matter that is


relevant to any party's claim or
defense"
Including existence of tangibles
Court may order discovery "for
good cause"

26(a)(4)
All disclosures under Rule
26(a) disclosed in writing,
signed, and served.

26(a)(1)(A) Initial Disc.


26(b)(2) Limitations Frequency/
Extent
(A) Court can alter limits of #
dep, inter, length of dep, and
request
(B) Electronic need not be
revealed by reason of "undue
burden or cost" Must SHOW
this; can still order
(C) Court must limit freq or
extent of discovery if
determines:
(i) "unreasonably cumulative or
duplicative, or can be obtained
from other source that is more
convenient, less burdensome, or
less expensive"
(ii) party seeking discovery has
had ample opportunity to obtain
the information
(iii) burden or expense of the
proposed discovery outweighs
its likely benet (needs of case,
$$ in controversy, parties
resources, importance of the
issues, importance of discovery)

"Without awaiting a discovery


request, provide to the other
parties"
(i) Parties w/discover info
unless solely impch.
(ii) copy or desc. by category
and location of docs,
electronicSI
(iii) damages computation
(iv) insurance agreements

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)

(D) Not permitted to interrogate or depose for facts or


opinions by experts hired strictly in anticipation of
litigation or to prepare for trial and who is not expected
to be called as a witness; but may if:
(i) 35b
(ii) showing exceptional circumstances where the party
is unable to get similar information

26(a)(3) Pretrial

(E) Payment; unless manifest injustice, court requires:


(i) pay the expert a reasonable fee for time spent in
responding to discovery under 26b4A&D
(ii) for 26b4D; pay the other party a fair portion of the
fees and expenses it reasonably incurred in obtaining
the experts Facts/Opinion

26(a)(1)(C)

(A) Unless solely impch;


provide to party and le
(i)witnesses and those might
call if needed
(ii) designation of the
deposition witnesses transcript
or stenograph
(iii) ID docs and exhibits will
offer and might offer

At or within 14 days after 26f


conference unless court or
objection

(B) due 30 days before trial; 14


days to raise objections [check
rule!]

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

(C) Same as above but for attorney and experts; unless:


(i) relates to compensation for study or testimony
(ii) identify facts or data that the party's attorney
provided and that the expert considered in forming the
opinions to be expressed
(iii) identify assumptions that the party's attorney
provided and expert relied on in forming the opinions to
be expressed

26(b)(5) Claiming Privilege or Protecting


Trial-prep Materials
(A) If claiming either of the two protections
above; must:
(i) expressly make the claim
(ii) describe the nature of the documents,
communications, or tangible things not
produced or disclosed - and do so in a
manner that, without revealing information
itself privileged or protected, will enable
other parties to assess the claim
(B) If information is found in discovery that
is subject to protection, party making the
claim may notify any party that received
the information of the claim and the basis
for it. Must return, sequester, destroy and
all copies; must not use or disclose until
claim resolved; must take reasonable
steps to retrieve the information if the party
disclosed it before being notied; and may
present to court under seal for
determination ; must preserve until
resolved

26(b)(3) Trial Prep Materials


(A) May not discover docs and tangible things that are prepared in anticipation of litigation or for
trial by or for another party or its representative; by 26b4 discoverable if:
(i) discoverable by 26b1
(ii) SHOWS that it has substantial need for the material to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by other means
(B) if court orders discovery of those materials, it must protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of litigation rep or attorney
(C) Previous statement acquirable by party or other person without required showing; otherwise
37a5
Previous statement is:
(i) written statement that the person has signed or otherwise adopted or approved
(ii) a contemporaneous stenographic, mechanical, electrical, or other recording - or a transcription
of it - that recites substantially verbatim the person's oral statement

26(c)(2) Ordering Discovery

26(c)

If a motion for a productive order is wholly or partly denied, the


court may, on just terms, order that any party or person provide or
permit discovery

(A) forbidding the disclosure or discovery


(B) specifying terms, including time and place, for disclosure or discovery
(C) prescribing discovery method other than the one selected by party
seeking
(D) forbidding inquiry into certain matters, or limiting the scope of disclose/
discover to certain matters
(E) designating the persons who may be present while discovery conducted
(F) requiring that a deposition be sealed and opened on on court order
(G)requiring that a trade secret or other condential development, or
commercial information not be revealed or be revealed in a specic way
(H) requiring that the prties simultaneously le specied docs or information
in sealed envelopes, to be opened as directed

26(c) Protective Orders

26(c)(3) Awarding Expenses


Rule 37a5 applies to awarding expenses

(1) Party or any person from whom discovery is


sought may move for a protective order in the court
where the action is pending- or for deposition in the
district where the deposition will be taken; motion
must include certication that the movant has in
good faith conferred or attempted to confer with
affected parties in an effort to resolve without court
action; court may issue order to protect from
annoyance, embarrassment, oppression, or
undue burden or expense for: