Civil Procedure I – Outline
Shapiro
Fall 2014
I. Rules
(1) Two requirements for a lawsuit to be brought into federal court:
i. personal jurisdiction
ii. subject matter jurisdiction
(2) Federal courts have jurisdiction over cases involving:
i. diversity (citizens of different states)
ii. federal question (i.e. constitutional rights)
II. Pleadings (the complaint) (know basics, not likely to be testable)
(1) Purpose of pleadings:
i. notice of party’s claims and defenses to the other party
ii. identify which facts are in dispute
iii. identify the legal issues
iv. dismiss any legally insufficient claim
(2) Complaints must include:
i. short and plain statement of the grounds for jurisdiction
ii. short and plain statement of the claim showing they are entitled to relief
iii. a demand for the relief sought
iv. time and date of the offense
(3) Complaints must be filed in order to start the “process”
(4) Statements should be concise and the claims can be alternative and inconsistent
III. Pleadings (the answer) (know basics, not likely to be testable)
(1) After the complaint is filed, the answer is filed
(2) In the answer, the defendant includes defenses and denials
(3) Defenses include:
i. jurisdictional (not before the proper court)
ii. failure to state a claim (what the plaintiff has alleged does not amount to an actionable wrong OR even if everything the plaintiff has alleged is true, the defendant would not be liable)
iii. denials (what the plaintiff says is not true)
iv. affirmative defenses (even if what the plaintiff alleges is true and would result in liability, there is something about the situation which provides a reason for the defendant to avoid liability)
(4) issues of subject matter jurisdiction à must be a case of more than $75,000 to qualify as a diversity case in federal court
(5) was there a failure to state a claim upon which relief can be granted?
i. (is the compliant missing the allegation of causation? i.e. defendant’s actions caused plaintiff’s loss of job)
IV. Service and Time Limits/Spotting and Handling Issues (testable)
(1) Issues can arise whenever:
i. a governing rule is susceptible to two or more meanings and whichever meaning is used might change the answer to the original question or
ii. although the meaning of the rule may be clear, it is unclear whether the facts in the problem satisfy the rule or not
(2) Example of issue:
i. set of facts state a pleading was filed with the court two weeks after service and the question asked is whether a pleading was filed with the court in a timely manner
– Rule 5(d): documents must be filed “within a reasonable time after service”
– Issue: whether filing two weeks after service is within “a reasonable time after service”
PROBLEMS:
(1) P’s attorney is personally served with an answer containing a counterclaim on May 3, which has been signed by D’s attorney. According to Rule 12(a)(1)(b), P must serve an answer to a counterclaim within 21 days after being served with the pleading that states the counterclaim.
A. On whom must P’s attorney serve the answer to the counterclaim?
– Rule 5(b)(1): if a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party
– P must serve the answer to D’s attorney
B. What choices does P’s attorney have of how to serve the answer to the counterclaim? Which of these may always be used and which require consent?
– Rule 5(b)(2): A-F
– Rule 5(b)(e)&(f): require consent (electronic means)
C. If it is delivered to D’s attorney personally, it must be delivered by?
– May 24: do not count May 3 when counting the 21 days. Weekends count.
D. If P’s attorney mails it, it must be (mailed/delivered) by the date above.
– “mail” is ambiguous
– Rule 6(d): when a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(c), (d), (e), or (f), 3 days are added after the period would otherwise expire under Rule 6(a)
– May 24 + 3 days = May 27 à Must be mailed by May 27
(2) On the last day that the counterclaim could be served (see above, May 27) P’s attorney puts it in the U.S. Postal Service mailbox in his office building at 4:30 p.m. The clerks office in that district stays open until 5:00 p.m. The last mail pick-up of the day at P’s attorney’s building is 4:00 p.m., therefore it is picked up by the mail carrier the next morning and post-marked that day (May 28), then delivered the next day to D’s attorney. Has the answer to the counterclaim been served in a timely mjanner?
– issue spotter: whether you’re looking at when it was mailed or when it was post marked
– Rule 5(b)(2)(c): says that service is completed upon mailing
– HOWEVER: difficult to prove because it was not post marked until May 28.
V. Pre Answer Motions and Waiver of Defenses (testable)
(1) Rule 12(b): jurisdictional defenses that can be raised in a “motion to dismiss” before filing an answer
i. lack of subject matter jurisdiction
ii. lack of personal jurisdiction
iii. improper venue
iv. insufficient process
v. insufficient service of process
vi. failure to state a claim upon which relief can be granted
vii. failure to join a party until Rule 19
(2) if a defendant’s motion is granted, then the case is dismissed and the defendant need not file an answer
(3) Rule 12(h)(1): Defenses 2-5 are lost if the defendant makes a pre-answer motion and omits any of them from that motion
(4) Rule 12(h)(3): Defense of subject matter jurisdiction can never be waived à “if the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action”
PROBLEMS:
Facts: Paul P is a student at Temple University Law School. Works as a law clerk in PA for a solo practitioner, but intends to return to MD after he spends a year clerking for a judge in PA. David D is the solo practitioner in PA who hired P. When P first started worked for D, P was dating his daughter, but they have broken up and D’s daughter was heartbroken. During the time that P has been working there, some money has been missing form some of the clients’ escrow accounts. D
)
– the affirmative defense of privilege: YES à as amendment to pleading Rule 12(b)
– lack of federal subject matter jurisdiction: YES à at any time Rule 12(h)(3)
VI. Counterclaims (not likely to be testable, know basics)
(1) two types of counterclaims
i. compulsory: Rule 13(a) à must be brought in answer
ii. permissive: Rule 13(b) à may be brought in the answer
(2) The rule for compulsory counterclaims is based on efficiency (one lawsuit)
(3) HOWEVER: if joining the claims for trial would create prejudice towards one of the parties or confuse the issues, the claims can be severed for trial under Rule 42(b)
i. this allows for efficiency in pre-trial matters, but remedies the potential problems of prejudice or confusion
(4) If a defendant accidentally did not include his compulsory counterclaim in the answer he would most likely be allowed to amend his answer under Rule 15
VII. Amendments (testable)
(1) Amendments are liberally allowed so that a claim is not barred due to a mistake
(2) Some may be made “as of course” (require no permission) if made in a timely fashion, however only one amendment “as of course” is allowed
(3) The time limits depend on whether the pleading is one to which a responsive pleading is required
i. time limit if responsive pleading is required:
– 21 days after being served with the responsive pleading
ii. time limit if responsive pleading is not required
– 21 days after serving the pleading
(4) All other amendments require written consent of the opposing party of the court’s leave, but the standard for grating leave is fairly liberal à “whenever justice so requires”
i. exception: jurisdictional defenses (personal jurisdiction, service of process, or venue) are waived if they are not contained in a responsive pleading, pre-trial motion, or amendment as of course
ii. no restriction as to how late into the process an amendment may be allowed
(5) What happens if a claim is filed in a timely fashion, however the amendment is filed after the statute of limitations has run?
i. Rule 15(c)(1)(b): allows an amendment to “relate back” to the date of filing the claim if it “asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in the original pleading”
(6) If the amendment changes the parties involved, the amendment must “arise out of” and the party being added must receive notice and knew or should have known that the action would have been brought against them but for the mistake
i. formal notice is not required
