CIV PRO TOOL BOX
Info
PRE-TRIAL PHASE
Service of Process (Greene v. Lindsey)
· Serving summons: D must have adequate notice (b/c of Due Process req of 14th Am). What is reasonable? Must consider likelihood of success, cost for all involved, the specific situation, and it must be proportional to interest at stake. In Greene v. Lindsey, in Kentucky, door posting wasn’t enough b/c kids tear down posting in public housing and there were alternatives (mail)
· Rule 3: complaint commences action
· Rule 4: P serves a summons. First P sends request for waiver. If D does not return signed waiver, P has someone serve the summons and D pays expenses. Can serve by delivering personally, by leaving a copy at each of the individual’s dwellings or with someone of suitable age and discretion who lives there, or by serving someone who is authorized by appointment or law to receive service or process.
· D has 21 days to respond to complaint (from time received complaint, rule 12) if didn’t waive service, 60 days (after sent) if did waive service. Note, P has 120 days to serve after complaint filed.
Rules
· 1: Rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding”
· 2: “This is one form of action – the civil action.” [merges law and equity]
· 3: “A civil action is commenced by filing a complaint with the court.”
· 4: Summons
o 4a1: What a summons must include
o 4c1-3: WHO can serve it (can go by state rules or federal rules below)
o 4d: Waiving service – If D waives service, has 60 days instead of 21 to respond. If D fails to waive service, must bear cost of making service
o 4e: HOW to serve individual in the US
§ 1) follow state law; or
§ 2) doing any of following
· A) delivering copy of summons & complaint to individual personally
· B) leaving copy of each at individual’s dwelling w/ someone of suitable age & discretion who resides there; or
· C) delivering a copy of each to agent authorized by appt or by law to receive service
o 4g: serving minor or incompetent person
o 4h: serving corporation, partnership, or association:
§ 1: w/in USA
· A) same as 4e1: according to state law
· B) delivering copy of summons and complaint to officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statue and the statute so requires—by also mailing a copy of each to D
o 4l: Must have server’s affidavit to prove serving if service is not waived
o 4m: D must be served within 120 days of filing complaint (can be extended for good cause)
· 5th Amendment (Due Process Clause): “No person shall be …deprived of life, liberty, or property, without due process of law.”
Cases
· Greene et al v. Lindsey et al (SC, 1982, Supp. 1) Brennan
o Sherriff posted summons on appelees apt door and they didn’t receive it and missed chance to be heard in court
o “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” Mullane v. Cental.
o Reasonableness of notice must be tested with reference to existence of “feasible and customary” alternatives and supplements to form chosen
o Children often tear down. Could have also mailed. State deprived P of property without due process, which is unconstitutional b/c of 14th amend.
Info
PLEADINGS
· Pleadings: complaints, answers, counterclaims, & crossclaims
· Rule 11: SANCTIONS for misrepresentation in pleadings (Christian v. Mattell)
o 11a: Every pleading and written paper must be signed
o 11b: Signature certifies not presented for improper purpose, have or likely will have evidentiary support, etc. Certifies all these things to the best of signer’s knowledge “after inquiry reasonable under the circumstances.”
o 11c: Sanctions: May be monetary, but courts usually prefer nonmonetary
§ Christian v. Mattell (Barbie copyright case): P’s lawyer was terrible, D awarded monetary damages under Rule 11c, appeals court reversed and said needed to reconsider because might have awarded money based on lawyer’s behavior instead of just on written documents
· COMPLAINT (Gillispie v Goodyear, Conley v Gibson, Twombly)
o Rule 8:
§ 8a: P’s complaint must have short and plain statement of claim showing entitled to relief, and demand for relief sought.
§ 8b: In response to pleading, D must state in “short and plain” terms its defenses to each claim, and admit or deny allegations asserted against it by opposing party
§ 8c: Affirmative defenses
§ 8d: Pleadings must be concise and direct, and inconsistent pleadings allowed
§ 8e: “Pleadings must be construed so as to do justice”
o Twombly “retired” language of Conley. Conley said that complaint shouldn’t be dismissed unless beyond doubt that P can prove no set of facts in support of claim which would entitle him to relief.. Twombly says they need to be “
sting law, or by nonfrivolous argument to extend or change existing law or create new law
§ (3)Factual contentions have, or are likely to have upon further investigation/discovery, evidentiary support
§ (4)Any denials of factual contentions are warranted on the evidence
o 11c: Sanctions
§ (1)Court may impose appropriate sanction on attorney (or party rep. self) who violates 11b
§ (2)Opposing party may make motion for sanction; 21 day safe harbor to amend or withdraw in which case court can award prevailing party attorney’s fees
§ (3)Or court may order sanction on its own initiative
§ (4)Should be “what suffices to deter repetition of the conduct” by guy sanctioned or others in similar position. May include “nonmonetary directives [one judge ordered a class], an order to pay penalty into court…pay…reasonable attorney’s fees and other expenses directly resulting from the violation.”
o 11d: These sanctions not applicable to “disclosures and discovery requests” etc. (but apply to all other written documents)
· 12: Defenses and Objections, Motions to Dismiss (called Defenses) etc., and when and how to present
o 12a1A: D must serve answer within 21 days after served (unless service waived, in which case D has 60 days after request for waiver was sent); a1b 21 days to answer counterclaim after being served
o 12b: D can assert following defenses by motion (as opposed to part of responsive pleading); (2) through (5) must be made in first filing or lose option:
1) Lack of subject-matter jurisdiction
2) Lack of personal jurisdiction
3) Improper venue
4) Insufficient process
5) insufficient service of process
6) “Failure to state a claim upon which relief can be granted.” –amendable, can be made anytime. -In judging, court views pleading in light most favorable to non-movant.
7) failure to join a party under Rule 19
o 12c: Motion for Judgment on the Pleadings (can move for this as long as it’s early enough not to delay trial)
o 12d: If matters outside of pleadings presented, treated as summary judgment (rule 56)
o 12e: Motion for a More Definite Statement. Must be filed before responsive pleading is allowed, P has 14 days to respond—disfavored
