Service Is Important As a Means and Not As an End. Want the Swift Resolution of Disputes

I. Process:

A. SERVICE

Service is important as a means and not as an end. Want the swift resolution of disputes. Waiver if parties can cooperate; brings about swifter resolution of disputes. If not waiving, then must meet due process test. Important that parties know if there is a lawsuit pending against them so that they can be heard in response.

TIMING

  1. Law suit begins when complaint is filed with court. 3
  2. P has 120 days to serve complaint on D (extension for cause) 4m

METHOD OF SERVICE

  1. WHAT IS SERVED
  2. Complaint 4(c)(1) and Summons 4(c)(1) served together. Summons must be signed by clerk, court seal, id relevant parties and court, give name of counsel for P, state date for response or what happens if no response.
  1. WHO SERVES
  2. Served by someone 18+, not party to suit, or ask for appt of US Marshall. 4(c)(2).
  3. Don’t want a party to serve b/c that may lead to self-help resolutions.
  1. HOW TO SERVE IN U.S.
  2. Can serve according to state rules:
  3. In state where district court is located 4(e)(1)
  4. In state where service is effected. 4(e)(1)

OR

  1. According to FRCP, if no other federal statute governs service in the particular case, then it can be effected by: 4(e)(2)
  2. Delivering summons and complaint to D personally;
  3. Leaving summons and complaint at D’s house w/person of suitable age who lives at D’s house; this leaves discretion to server to know that a person is competent recipient.
  4. Leaving summons and complaint w/agent authorized to receive service. Not any employee, must be authorized employee.
  5. Party cannot follow some rules from state and some from FRCP, choose one or the other: all or nothing.
  6. 4(e) If a federal statute mandates different type of service, then that service trumps FRCP.

WHEN DOES SERVICE FAIL?

  1. Test for service:
  2. Has D been given reasonable notice of the action through service?
  3. D doesn’t have to know of the action for P to proceed, but P must have served in a way that D could have reasonably received notice.
  1. COST BENEFIT TEST:
  2. Worry about error in service. Greene
  3. If costs of process <(increase of process)(interests at stake) then implement new method. Consider costs and benefits to each party.
  4. Relative costs involved in process
  5. Costs in $, time. Slow method no prompt resolution.
  6. Reduction in error: reliability
  7. In Greene, posting was deemed less than reliable b/c the sheriffs knew that children and neighbors removed the posted notices.
  8. Interest at stake: interest
  9. The higher the stakes, the more service required.
  10. Eviction more significant than parking ticket. Court will require more process to serve notice of eviction than ticket.
  1. CONSTITUTIONAL TEST (Mullane v. Central Hanover)
  2. Constitutional standard for due process in service is: reasonably calculated under the circumstances. The “right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” Mullane
  1. MISCELLANEOUS
  2. One-size-fits-all: the rules are written to cover most situations, so in some cases they are overly strict (requiring personal service) and in other cases not strict enough (and will fail due process/constitutional test).
  3. If suing multiple parties, must serve each party independently.

B. WAIVER

Parties that can cooperate get to waive costs/time of service. Waive service to reach swift resolution. D cannot voluntarily waive service; P must request D to waive for D to do so.

How

  1. Request for waiver in writing directed to D or D’s agent. 4(d)(2)(a) Sent by first class mail 4(d)(2)(b) Include complaint and notice of court where complaint filed. 4(d)(2)(c) State consequences of not waiving. 4(d)(2)(d) Include date waiver request sent. 4(d)(2)(e)

Responding

  1. D has at least 30 days from time request sent to respond. 4(d)(2)(f) Gives D extra copy of notice and complaint and pre-paid way to respond. 4(d)(2)(g)
  2. Incentives for waiving process
  1. P’s incentives:
  2. Less strict: mail waiver request, can’t mail service of process notice.
  3. Cheaper.
  4. D’s incentives:
  5. Stick: Duty to keep costs down 4(d)(2), failure to waive can result in court ordering D to pay costs of service 4(d)(5) if no good cause.
  6. Carrot: D gets 60 days to respond to complaint if agrees to waive service otherwise has 20 days to respond (90 days out of US) 4(d)(3).

II. Pleading

A. HISTORY OF PLEADING

Modern pleading is a combination of pleading in old English Common Law courts and courts of equity.

  1. Equity: A good way to resolve complex suits involving multiple parties; allowed testimony under oath and could compel testimony; relied on written depositions/no limit to number of depositions.
  2. Common Law: A good way to define disputes between parties; no testimony under oath, no compelling of testimony; relied on witness’s testimony, limited number of witnesses/case.

B. Pleading Today:

  1. FRCP 7(a): In practice, there is really only a complaint and an answer, but the rule allows for: complaint, answer, reply to counter-claim, third-party complaint, and third party answer.

Purpose of pleading: Ultimately, pleading is about notice

Notice Pleading: pleading is to give D and court notice of the nature of P’s claim and the grounds that it rests on. The details are filled in through discovery.

Code Pleading v. FRCP

  1. Under FRCP: Broad Notice Pleading: Can plead facts and conclusions of law; must plead facts to cover the elements of the claim. Some conclusions are insufficient.
  2. Under Code Pleading: Fact Specific Pleadings: Can only plead facts. No conclusions; the complaint must lay out the issues so that the judge and D know what the facts are and what the legal issues are that are being alleged. Gillespie v. Goodyear Service Stores

a.  Things to Include: what occurred, where it happened, who did what, what the relationship between the parties is, other factual data to identify the circumstances.

b.  Problems w/code pleading: has its own technicality problems (like CL pleading) Judges are in the business of assessing what an app level of facts is.

B. THE COMPLAINT

Functional standard: Let court and D know what case is about so court can dismiss baseless claims and D knows how to respond to complaint. No dismissal for technicalities.

INCLUDE: Short, plain, concise statement including: court’s jurisdiction 8(a)(1), statement of claim 8(a)(2), and demand for relief 8(a)(3). Can include request for relief in alternative 8(a)

a)  Must invoke law and relate facts to establish that P entitled to relief under that law.

b)  Duncan v. AT & T failed b/c didn’t allege facts or conclusions that would support the law invoked in complaint. (Race discrimination case, didn’t say member of prot. class.)

Three ways for a claim to be insufficient:

  1. No facts, no conclusions of law.
  2. No facts, conclusions too vague to show court and D what is alleged.
  3. Facts/conclusions don’t establish all elements of the claim. (doesn’t cover all aspects)

DETAIL

  1. Facts sufficient to establish the elements of the legal claim. Don’t need to prove facts now. Conclusions ok, so long as not baldly conclusory. Rannels v. S.E. Nichols
  2. Facts can be broad, but if proven, would support claim.

CONSISTENT CLAIMS/ALLEGATIONS

  1. Can raise alternative and even conflicting theories. 8(e)(2)
  2. Why? Only through discovery process will parties have sufficient information to know which claim to pursue.
  3. If one of these claims/defenses stated in the alternate is good, then it doesn’t matter if other claims/defenses fail, the claim/defense is good on the whole. 8(e)(2)

HOW DRAFTED? All pleadings should be written in a way that does substantial justice. 8(f)

c)  Sparse complaint: doesn’t reveal too much, may need to get details through discovery.

d)  Detailed complaint: May be weak case, but some facts compelling. Get as much information into complaint to win judge’s sympathy, set tone for trial, and gain attention of press. The more pled, the more detailed response elicited from D.

CONTROLLING PLEADING ABUSES:

12(b)(6): Failure to state claim for which relief can be granted. Generally, P has one chance to amend.

11: Factual investigation pre-filing; not filed to harass; based on existing law or reasonable extension of the law.

EXCEPTION TO LIBERAL PLEADING: Pleading rules and civil rights claims can clash where a party has the right to exercise a qualified immunity defense.

Qualified immunity

1)  No trial for gov actors if acting under “reasonable misapprehension of the law.”

  1. Standard: “objective reasonableness”
  2. Policy: Value this work and if required to stand trial disincentive to take gov jobs.

Heightened pleading requirements imposed on a plaintiff in a civil rights case involving a QI defense invoked by a government agency conflict with the “liberal system of ‘notice pleading’ set up by the Federal Rules. Leatherman doesn’t rule on whether a government official can invoke QI to require heightened pleading. Leatherman v. Tarrant County

Reconciling liberal pleading under FRCP with right not to undergo trial/discovery under QI. [ONLY APPLIES TO 5TH CIRCUIT]

1)  Keep the initial complaint pleading short and simple (as per the rules); Court can invoke Rule 7 (a) to compel a reply on a certain issue if that reply will assist D in their efforts to respond to P’s initial complaint. P can be forced to offer more detail than available in this second reply if D invokes the qual imm aff def. Schultea v. Wood

What is at stake?

1)  P’s right to liberal pleading sufficient to satisfy FRCP;

2)  D’s right not to undergo discovery as a government official.

Critique of Schultea

1)  7(a) is a vestige of code pleading and keeps P from developing the facts needed to support its claim. Schultea blocks P’s access to discovery in QI cases. Marks departure from intent of rules.

2)  Pleading is not the proper stage for the courts to weed out merit-less claims. This is better done at a later stage (discovery) when parties and court have more information.

C. THE ANSWER

Must reply at level of specificity of complaint. Answer allegations of complaint specifically.

  1. When answer: 20 days after service. 12(a)(1)(a) OR 60 days if waived service. 4(d)(3) OR within 10 days of court ruling on 12(b) motion. 12(a)(4)(A)
  2. Denials: Must state defenses to allegations in complaint. Can deny entire complaint (watch for Rule 11 if no grounds), or can deny specific averments in a complaint.
  3. Denials have to meet the substance of the complaint. If you are denying only part of a complaint, must be specific about what is denied. 8(b) If you deny generally, you cannot later assert that a part of what you denied (or admitted to) is true. Zielenski v. Philadelphia Piers. Won’t allow to exploit complaint.
  4. What isn’t denied in a pleading that requires a response is admitted. 8(d)
  1. Motion to Dismiss: A party can object to a pleading without responding to its claims for relief. These objections can be made in a pre-answer motion, or they can be raised in the answer (motion for more definite statement is waived if not raised pre-answer). 12(e)
  2. Pre-answer motion: The pre-answer motion protects D from inappropriate suits.
  3. Spares D the costs of responding to a complaint and the burden of having to admit to potentially damaging claims.
  4. After these motions are filed, the other party has an opportunity to respond.
  5. A party can only file ONE pre-answer motion.
  1. Procedural defects: Generally curable flaws, and flush out mistakes early
  2. Insufficiency of process 12(b)(4) waived if not raised in answer or pre-answer motion 12(h)(1). Notice inadequate (lack of court seal, etc.).
  3. Insufficient service of process 12(b)(5); waived if not raised in answer or pre-answer motion 12(h)(1). Process inadequate (notice left with a person not of suitable age, not served properly, etc.).
  4. Failure to join a party 12(b)(7); can raise after pre-answer or answer filed under rule 7(a) [reply], on a motion for judgment on the pleadings, or at the trial on the merits.
  1. Fatal defects: Result in the immediate dismissal of the lawsuit.
  2. Lack of jurisdiction over the subject matter 12(b)(1); this can be raised at any time during the proceedings 12(h)(1).
  3. Lack of jurisdiction over the person 12(b)(2); waived if not raised in answer or pre-answer motion 12(h)(1).
  4. Improper venue 12(b)(3); waived if not raised in answer or pre-answer motion 12(h)(1).
  1. Challenge to merits of the complaint: This motion raises the allegation that the complaint, even if factually correct, doesn’t entitle P to legal relief. This would result in dismissal of the lawsuit, if after an opportunity to amend, P fails to state a claim for which relief can be granted.
  2. Failure to state a claim upon which relief can be granted 12(b)(6); this can be raised after pre-answer or answer filed under rule 7(a) [reply], on a motion for judgment on the pleadings 12c, or at the trial on the merits JML.
  3. Question posed: If P proves its allegations, will this establish a cause of action for which relief can be granted?
  1. Waiver of defenses
  2. Four 12(b) defenses waived if not raised in first pre-answer motion or answer: objections to personal jurisdiction, venue, form of process, or method of service of process. Also, 12(e) motion for more definite statement is waived if not raised in first response.
  3. Policy behind Waiver: Should be obvious after complaint filed; prevent D from pulling out procedural objections once losing on merits; put procedural problems on the table and avoid costs of litigation.

Important points on 12(b)(6):

  1. What it does:
  2. 12(b)(6) concedes the truth of what is alleged in complaint and argues that these facts aren’t sufficient to support a legal claim.
  3. Court typically gives P chance to amend. If problem not fixed, dismissed.
  1. Standard:
  2. Complaints under 12(b)(6) are not dismissed “unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson
  1. Which claims fail?
  2. Complaints that seek relief for acts not proscribed by the law.
  3. Lawyer didn’t allege the necessary elements of the claim. (can be corrected).
  4. 12(b)(6) doesn’t weed out claims that lack proof to support the necessary facts. These claims fail at discovery or trial.
  1. Standard for appellate review: Granting 12(b)(6) reviewed de novo.

Motion for more definite statement: If insufficient information in a complaint to respond can file a motion for a more definite statement. 12(e) Other party has 10 days to respond or stricken.

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