CIV PRO CZARNETZKY
General Information on Procedure
Stating the Case (Drafting the Complaint)
Rule 8 & 11
Rule 8 (a): (Drafting) requires a short and plain statement stating
1 The reason for federal jurisdiction
2 The facts of the incident (why relief is being sought)
3 Relief type desired (damages).
Rule 11: (Signing) Requires that the attorney has signed the complaint, this means that you have agreed to certain standards.
1 The primary purpose of the this rule is deterrence
o 11(b)(2) Requires lawyer to state that the actions and claims are real and non-frivolous.
o Sanctions can be imposed, only as much a sanction to deter others or that specific lawyer from acting again in that manner.
o It is designed to make the attorney pause for a second and “stop, look and listen” to the claim they are about to file
§ Requires the lawyer to conduct reasonable research of both the facts and laws of the case.
§ “Pure heart empty head” defense is not permissible.
Rule 12 Motions that look for immediate relief,
2 (a)(1) must be filed within 20 days of service.
3 (b) (1-7)
o Lack of SMJ
o Lack PJ
o Improper venue
o Insufficiency of process
o Insufficiency of service of process
o Failure to state a claim upon which relief can be granted
o Failure to join a party under Rule 19
4 If no motion is made, D must answer the claim
5 FRCP 12(g) requires consolidation of all FRCP 12 motions.
6 FRCP 12(h) failure to consolidate all motions makes subsequent motions automatically waived.
o Only insufficiency of service of process, venue or PJ
o SMJ cannot be waived.
Discuss whether or not allegations are truthful
1 Seeks no immediate relief
2 Consists entirely of assertions
3 20 day answering period
1 (b) Denials
o Denial of facts, general denials are not valid.
o Without knowledge or information sufficient form a belief as to the truth of an averment, a party shall so state and this has the effect of a denial.
o Shall specify what is true and shall deny only the remainder
2 (c)Affirmative Defenses
Rule 13 (a)(b)(g)
1 Counter claims, cross claims, 3rd party claims
2 13 (a) Counter Claims
o Counter claims do not have to relate specifically to the original claim
o Compulsory counter-claims: Those arising from the same claim, only time to claim them is at this time.
o Permissive counter claims
Parties to the Lawsuit: Joinder
Rule 20 (permissive joinder)
1 Any party may join P or D if they assert any right to relief (or charge against them) jointly, severally or arising out of the same transaction.
2 P s the master of the complaint, has the right to choose, originally who is to be party.
Rule 19 (compulsory joinder)
1 Persons must be present; they are needed for the adjudication.
2 Their absence prevents cts. Ability to order complete relief
3 Or absentee has unprotected interests in subject matter in dispute
Rule 14 (impleading)
1 Brings in other parties
2 3rd party D, may be liable to the 3rd party P for part or all of the D’s issue against the P
3 Does not work if 3rd party D has direct liability to P (if it did then the D woul
Post Trial Motion
28 USC § 1291 (appeals)
1 Appeals are allowed only after final orders (Dispositive motions)
2 What is allowed to be appealed
a. Questions of fact
i. Only facts of clear error, no evidence to support it
ii. Erroneous decisions of fact only effect parties to the particular case, appellate cts are more willing to allow them to go.
b. Questions of law
i. They may review all areas, de novo review.
ii. Erroneous decisions of law affect multiple cases, appellate cts. are not likely to allow them to slide.
1 How much a decision can affect further rulings.
2 Res judicata: only one claim per cause. Same parties same cause of action.
o Claim preclusion
§ The same parties may bring only one claim. The claim must arise out of the same cause of action
o Issue preclusion
§ Issues already decided in one case will not be raised in a 2nd case
Type of Authority Over the D Over the case
Con. Limitation DP clause Art III §2
Protected Interests Convenience Ltd Fed power
1 Given that PJ is a personal right it can be waived.
2 A defense for lack of PJ is waived if it is not raised within an appropriate period of time in pleading.