Civil Procedure II Outline

I. Plaintiff’s Complaint
a. Rule 1- Scope/Goal of FRCP
i. Goal is to secure a just, speedy determination of every action and proceeding
b. Rule 7- Pleadings Allowed
i. 7(a): Pleadings (pleadings= complaints/answers)
1. Complaint, answer to complaint, answer to counterclaim, answer to cross-claim, 3rd party complaint, answer to 3rd party complaint, reply to an answer, no others
ii. 7(b): Motions
1. 1- a request for court order must be made by motion & must:
a. A- be in writing unless trial/hearing
b. B- state w/ particular grounds for order
c. C- state relief sought
2. 2- Form. Rules governing captions and other matters of form in pleadings applied to motions & other papers
3. 3- All motions must be signed in accordance with Rule 11
c. Conley v. Gibson- Purpose of complaint is to give D notice
d. Rule 8- General Rules of Pleading
i. 8(a): 3 elements of what must be contained in a pleading
1. Short and plain statement of jurisdiction
2. Short and plain statement of claim
3. Prayer for relief
ii. Swierkiewicz v. Seroma N.A.
1. Question: Does FRCP require more than a short and plain statement as defined in Rule 8a or more- 9b?
a. 9B- Fraud or Mistake
i. Party must state with particularly the circumstances constituting fraud or mistake
ii. Malice, intent, knowledge, and other conditions of a person’s mid may be alleged generally
2. Holding: some courts use 9B by analogy, court did not here
a. Inference of discrimination not required for pleading
b. Reasoning for 9b- fraud easily fabricated/effect on reputation
iii. 8(d)- Pleadings to be Concise and Direct; Consistency
1. 1- General: Must be simple, concise & direct (no technical forms req.)
a. Intelligible
2. 2- Alternative Statements of Claim/Defense: Party may set forth 2+ statements alternatively or hypothetically. Only need 1 to be sufficient
3. 3- Inconsistent Claims/Defenses. Party may state as many separate claims or defenses as it has, regardless of consistency
iv. 8(e)- Construing Pleadings. Must be construed to do substantial justice
e. Rule 4- Service of Complaint (Summons)
i. 2 requirements for service:
1. Classify D (corporation, individual, foreign)
2. Are waiver provisions applicable to this type of D
ii. Rio Properties v. Rio International Interlink
1. RII was international corporation – Rule 4F
2. 4(f) is NOT a hierarchy
3. E-mail was reasonably calculated
iii. 4(c): Service with Complaint
1. 1- General. Summons served with complaint; P is responsible for service within the time allowed under (m)
2. 2- By Whom. At least 18 and not a party
3. 3- Marshal/Appointed. If P requests, court may appoint a marshal or officer (required for pauper/ seaman)
iv. 4(d): Waiving Service
1. 1- Requesting a Waiver: Individual, corporation or association subject to 4(e,f,h) has a duty to avoid unnecessary expenses of serving summons; P may notify D of action and request waiver of service by:
a. A- writing addressed
i. I- to individual D or
ii. Ii- for D subject to 4h- to an officer or agent appointed
b. B- name the court where complaint was filed
c. C- be accompanied by a copy of the complaint, 2 copies of the waiver, and prepaid means for returning the form
d. D- inform D, using text in form 5, of cons of waiving/not
e. E- state the date when request is sent
f. F- Give D reasonable time to return waiver- at least 30 days after request was sent or 60 if sent to D outside the US
g. G- sent by first class mail or other reliable means
2. 2- Failure to Waive: If D located within US fails, without good cause, to sign/return waiver, court must impose on D:
a. Expenses later incurred in making service AND
b. Reasonable expenses, including attorney’s fees, of any motion required to collect service expenses
3. 3- Time to Answer after Waiver: A D who timely returns waiver, does not need to service an answer to complaint until 60 days after request was sent or 90 days if D outside US
4. 4- Results of Filing a Waiver: when P files waiver, proof of service is not required & these rules apply as if a summons & complaint had been served at the time of filing the waiver
5. 5- Jurisdiction & Venue Not Waived: does not waive PJ or Venue
v. 4(e): Serving an Individual Within a Judicial District of US: unless federal law provides otherwise, an individual (other than minor, incompetent, or person whose waiver not filed) may be served in judicial district of US by:
1. 1- following state law for serving a summons in action by courts of general jurisdiction in state where DC is located or service made, OR
2. 2- any of the following:
a. A- Personally delivering a copy of summons/complaint to D
b. B- leaving a copy at D’s dwelling or usual place of abode with someone of suitable age/discretion who resides there OR
c. C- Delivering copy to an agent authorized to receive process
vi. 4(f): Serving an Individual in a Foreign Country: unless federal law provides otherwise, an individual (other than minor, incompetent, party who has not waived) may be served at place not within any judicial district of US:
1. 1- by internationally agreed means of service reasonably calculated to give notice, (Hague Convention on Service Abroad)
2. 2- if no internationally agree