Everything Has to Be Signed by the Lawyer Rule 11A

Pleading

Rule 11—veracity in pleading
everything has to be signed by the lawyer—Rule 11a
basics—rule 11b
applies to everything you do with respect to a case except discovery
all complaints, motions, arguments, answers, etc
four certifications that you making under this rule
not made for improper purpose—such as to harass or delay or increase expense
legal contentions are warranted by existing law or a good faith argument for a change in the law or adopting a new law
factual allegations in a complaint have or likely to have evidentiary support—you have to do a resasonable investigation
denials must be supported by evidence reasonably based or lack knowledge
sanctions—rule 11c
can be initiated on motions by a party or sua sponte (on the court’s own initiative)
21 day safe harbor provision—you have to notify the opposing party, and give them 21 days to withdraw their complaint before sanctions might be issued
Rector—safe harbor provision must be raised or you waive your right to impose the rule
Majority of courts do not view safe harbor provision as waivable
Complaint
four basic elements of a complaint: Rule 8
caption
name of court
action
file number
names of parties
statement for basis of subject matter jurisdiction
short and plain statement saying why the Π is entitled to relief—showing pleader is entitled to relief (suggests a violated legal right)
demand for judgment—rule 54: you can recover whatever damages you prove at trial
balance
give the Δ just enough info to be able to reply to the complaint
a persuasive statement showing jurisdiction anda statement showing that Π deserves relief
judicial gloss—pleader is entitled to all benefit of the doubt (Dioguardi)
heightened pleading standards
not allowed for civil rights cases
allowed for fraud and mistake and condition of the mind cases—majority of courts will require that you have at to at least articulate specific transactions in a complaint for fraud
can plead inconsistent facts and alternative theories: Rule 8e2, McCormick
if you’re in a position to know the facts, you cannot plead inconsistent facts
must plead the inconsistent theories in good faith—see Rule 11
damages
general damages—the natural expected result of what has been alleged in the complaint
NEED NOT BE STATED IN COMPLAINT
special damages—proximate result of what has been alleged
but only because of special circumstances of the Π that the Δ needs to be notified of
hospital and medical bills
lost profits
NEED TO BE STATED IN COMPLAINT
How to come up with a number:
Look at previous cases with similar facts
Look at the history with your particular judge
Arguments to make to the jury:
Story-telling
Per diem argument—outlawed in most courts
Δ should not talk about damages because that’s admitting liability
Δ should criticizeΠ for asking for such a large amount, even if there’s no liability
Π is entitled to recover what he proves at trial, even if he alleged less—Rule 54c
If default judgment—you are limited to recovering the amount alleged in the complaint
If you don’t plead a specific amount, there’s a special hearing to determine what amount you should get
voluntary dismissal 41a
involuntary dismissal 41b
Response to Complaint
motions
Δ has 20 days to respond with answer or motion—12a
12b1: Subject matter jurisdiction
raised at any time
holding smj card could backfire if we win on the merits because it could then be asserted by the plaintiff on appeal. Waste resources, rule 11 sanctions. Can’t collaterally attack in a second case
12b2: personal jurisdiction—waived if not raised in first response
12b3: venue
12b4: insufficiency of process
12b6 motion—contest the legal sufficiency of the complaint—raised at any time
12b7: failure to join an indispensable party under Rule 19—raised at any time
12g: consolidate all defenses into the motion
if you make a motion under Rule 12, you must file all other Rule 12 motions with them or they are waived
EXCEPTIONS:
subject matter jurisdiction—12b1
failure to state a claim—12b6
failure to join an indispensable party under Rule 19—12b7
if you couldn’t have asserted an objection in the first motion, you may assert it in the second
12h—waiver or preservation of certain defenses
12e—motion for a more definitive statement
allows Δ to seek a motion of dismissal of action because the motion is too vague as to reasonably prevent the Δ from framing an appropriate response
12f—motion to strike
if part of the pleading is redundant, immaterial, or impertinent or scandalous may make a motion to strike within 20 days of service
motion to dismiss
D need not file an answer until her 12(b) motion is ruled on. This may save her considerable time and money in not having to file an answer. 12(b) defenses may be raised in a separate motion OR as part of an answer.
answer: rule 8b
Δ has 20 days to respond with answer or motion—12a
Admit
Deny
General denials—rarely used
Deny each and every allegation of the complaint
8b—you may only file if you intend to contest each and every allegation, including jurisdictional
conjunctive denial
denies everything that’s connected by a string of connections even though only one part is false
makes it unclear exactly what Δ is denying—Zielinski
denials for lack of knowledge or information
argumentative denials
this is improper—just say “denied”
responding to allegations by arguing that something else happened
negative pregnant with admission
this is improper
the complaint is too specific, Δ denies, it’s tantamount to admitting to something that’s similar
failure to deny—8d
allegations that are not denied are deemed admitted
affirmative defenses—you must plead affirmative defenses in answer or you may waive the right to use them (see amendments, Rule 15c)
Rule 8c: provides 19 defense
Assumption of risk
Contributory negligence
Duress
Estoppel
Failure of consideration
Fraud
Illegality
Payment of debt
Statute of limitation
Res judicata
3 categories of affirmative defensens:
legal reasons—separate from legally what he Π has to prove—if it’s part of what the Π has to prove, you can simply deny
factual reasons—may be easier for Δ to prove facts than for Π to prove non-facts
policy reasons—an example would be statute of limitations
default judgments
entry of default
notation made by clerk that the Δ has failed to plead when the Δ fails to plead within a required time
relief for Δ is available under Rule 55c, the court is allowed to lift the entry
judgment of default
clerk can enter a default judgment if damages are a specific number that are set in the complaint or the damages can easily be figured out
if damages are not a sum, certain Π must appear before the judge and offer proof
if a lawyer for the Δ has not appeared in the case they will not receive notice of the default damages hearing
Amendments and Supplemental Pleading: Rule 15
basic principles under rule 15a
You may amend as of right before any responsive pleading is served, or for an answer, before 20 days is up–this is an automatic right
The party may amend by leave of court–which shall be freely given when justice so requires
Balance test from judicial gloss:
The need to amend—taking into account the reason for delay—against the prejudice to the other side—taking into account ways to mitigate the prejudice
Consider the philosophy is to allow the parties, where consistent with fairness, to change the pleadings to reflect their evolving understanding of both the facts and their legal positions based on the facts. Priority is on presentation on the merits.
Denials of the right to amend are rare at the early stages of the case
Later in the case it is, the more likely it is that the amendment will be denied
The rule is ambiguous–therefore we need some court explanation as to how it should be applied:
the court interprets it to mean: balance the need of the moving party, taking into account any unwarranted dely AGAINST the prejudice to the responding party, taking into account any ways to mitigate the prejudice
Amendments to conform to the evidence—15b—amendments at trial
If an element not alleged in the answer is litigated by consent, then it shall be deemed amended by consent
Implied consent is shown by failure to object to evidence that would otherwise be inadmissible because it doesn’t relate to what was pleaded in the complaint
Amendments that relate back to a pleading—15c (Marsh—Peterson thinks this is wrong)
Allows an amendment of a pleading if it can relate back when claim or defense arose out of the conduct, transaction, or occurrence set forth in original pleading
An amended pleading will be deemed to have been filed on the date of the original pleading. This is to prevent statute of limitations from being a defense to the amendment
Judicial gloss:
The amendment constitutes one story AND
A reasonably prudent Δ should be able to anticipate these additional amendments
amendment changing a party 15c
must relate back—arise out of the same events
the new Δ must be aware of the complaint before the statute of limitations runs out
must file with court within the statute of limitations and have 120 days to find and serve the proper party
supplemental pleading 15d
allowed when events have occurred since the original pleading

Notice & Service of Process

Statutory requirements

Service = means for delivering papers (Rule 4, below)

Process = summons & copy of complaint

- federal forms

- summons: when & where to respond, time limit — 12(b)(4) for insufficiency of process

Five Methods of Affecting Service On An Individual
4(e)(2) Those authorized by:
In Hand Service
personal delivery of process to Δ
by any non-party over 18 years in age — 4(c)(2)
Substituted Service
Leaving a copy of process at Δ’s dwelling house or usual place of abode w/some person of suitable age and discretion residing therein
4-part test:

dwelling house or usual place of abode,

suitable age,

suitable discretion,

residing therein

National Development v. Triad. Saudi businessman’s maid was served at his apartment in NY (one of 12 residences worldwide); service sufficient because he was actually living there at the time of service.

Service on an Agent
Delivering process to an agent authorized by appointment or by law to receive service of process

4(e)(1) As authorized by state provisions
state of forum rule: authorized by the state in which the Federal Court sits or
state of the Δ rule: authorized by the state in which the Δ is served

2.Methods of Affecting Service on Corporations

4(h)(1)
per 4(e)(1), as authorized by state provisions of the state in which the Federal Court sits or of the state in which the Δ is served
service upon an officer, a managing or general agent, or to any other agent authorized by appointment or by law.
4(h)(2) in a place outside any judicial district of the U.S. in a manner prescribed for individuals by subdivision (f), unless it is personal delivery as provided in 2(C)(i)

4(d) Waiver
If the form hasn’t been returned, Δ hasn’t been served (even if you can prove that process was received)
At least 30 days allowed to return, if in US, 60 days if outside
encourages Δ to waive the notice requirement.
Otherwise, the costs of service are billed to Δ
Unless Δ can give a good reason why it wasn’t returned
Increases the time Δ is allowed to serve his answer to the complaint.
Δ is given 60 days (otherwise would be 20 days) from the date the request for waiver was sent, unless outside the US, then 90 days.
Waiver Must:
contain a notice and complaint
identify the court
be sent by 1st class mail or other reliable means
inform Δ of consequences of waiving and not waiving service
have date on which it was sent
provide Δ with at least 30 days to respond
include extra copy of the notice and request with a pre-paid means of responding

Due process requirements—the most elemental right is the right to be heard, and you can’t be heard if you haven’t been served!
Due Process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” (Mullane v. Central Hanover Bank & Trust Co)
Mullane held that notice by publication in this case does not satisfy due process because Π knew names & addresses. If you know names & addresses, you have to notify by mail or in-hand service. If not, then constructive notice or publication may be acceptable.
You have to do the best you can under the circumstances given the balance between the burden to Δ if not informed and the cost of service to Π (state interest in efficient legal system)
Email—courts tend to uphold service via email if:
The email address is correct and
Π can show that Δ tends to check her email
compliance with Rule 4 (Service of Process) almost always satisfies Due Process
exception: Greene v. Lindsey (Sup Ct, 1982) In most cases posting service on a door is acceptable, but not in this case because process servers were aware that notices posted on doors in that area were not infrequently removed by children before they were seen by tenants.

Personal Jurisdiction

jurisdiction statute
federal—rule 4k
service of a summons or filing a waiver of service is effective to establish jurisdiction over the person as a Δ
who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located, OR
if the exercise of jurisdiction is consistent with the constitution and laws of the US, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any Δ who is not subject to the jurisdiction of the courts of general jurisdiction of any state
state long arm statutes—Flint—statues usually apply these liberally
limits of due process statutes
confer jurisdiction to the full extent permitted by the 14th Amendment right to due process
laundry list, or enumerated statutes
list specific instances under which the state can exercise jurisdiction
intermediate type
listing specific instances but authorizing court discretion in interpreting the instances
due process
traditional bases
presence in the forum state when served—transient presence
still good—Burnham transient presence
however, this may have to do with Scalia’s view on due process
how long do you have to be in the state to uphold PJ based on transient presence?
Scalia justifies by saying that Δ received a benefit from the state by being there for a couple days
this is still valid personal jurisdiction unless
the presence in the state is involuntary or
the presence in the state is very limited and minimal—in Burnham, Δ was subject to PJ after being in the state for only 3 days
Exception for fraud, kidnapping
property in the state—this is no longer applicable without minimum contacts
in rem—seizing property located in the forum state that is related to the action
quasi in rem—seizing property located in the forum state that has no relation to the claim
ended by Shafferwhich extended the minimum contacts test to quasi in rem cases
debts—not applicable
debts are property
debt travels with the holder of the debt—Harris
consent
waiver by contract—Burger King
unless there is a huge disparity in bargaining power such that it would be unfair or unconscionable
waiver by action
Δ consents to jurisdiction when they file a counter claim
But, Δ can, in most jurisdictions, join a motion to dismiss based on lack of personal jurisdiction with other bases to dismiss
You’ve consented to the court’s jurisdiction to decide if they have jurisdiction
waiver by inaction
failure to raise a timely objection
appointing an agent for service or process within the state (sometimes)
domicile
corporation domicile
where the company is incorporated
individual domicile
residence AND
intent to stay
you are born with the domicile of your parents
your domicile doesn’t change until you have an intent to stay somewhere else
factors to determine intent to stay:

location of family

driver’s license and vehicle registration

voting registration

tax returns

in state college tuition

owning a home

employment status

prior domicile

communications—where they receive their mail

commercial connections—bank accounts

social connections—club and church memberships

General and Specific Jurisdiction:

Arises from contact w/ forum / Does not arise from contact
Continuous and systematic / Always / General jurisdiction
Isolated and sporadic / Specific jurisdiction / never

general jurisdiction—claim does not arise out of contact—the Δ may be sued for any claim—this usually doesn’t apply to individuals
continuous and systematic contacts with forum state—Helicopteros
continuous means constant, ongoing, without interruption, unbroken
as opposed to continual, which is repeated, separated contacts
a proportion of Δ’s business is derived from the forum state, such that they are getting a benefit from the state
in Helicopteros, the nonresident Δ made regular purchases in the forum state, but this was not sufficient to jusitify personal jurisdiciton
the contact can be temporary Perkins
fairness
it’s hard to imagine a case in which there’s continuous contact but the burden is too high on the Δ for it to be fair
policy rationale
companies that have such extensive activities, personnel, and facilities in a state may fairly be considered “at home” there
specific jurisdiction—claim does arise out of contact
THERE MUST BE MINIMUM CONTACTS—International Shoe
this applies to both corporations and individuals
the test:
contact directed by theΔ to the forum state, and this contact is what spawned the lawsuit
the contact analysis focuses on when Δ acted, not the time the lawsuit is filed
Δ does not have to act within the state. If Δ acts outside the state but knowing it will cause harmful effects within the state, Δ can be subject to PJ. Calder.
purposeful availment
intentionally but passively knowingly receiving a benefit from the forum state. The following are examples of types of cases in which purposeful availment is applied:
contract case
factors to consider—Burger King

prior negotiations