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Civil Procedure I
Wayne State University Law School
Fox, Gregory H.

1.     RULE 4 à NOTICE
a.       Definition = process of getting complaint & summons to ∆
b.      Notice necessary under due process
c.       Issues of power (jurisdiction) & notice diverged as states expanded consent
                                                              i.      Individuals sued “in personam” must receive some form of notice
                                                            ii.      For person sued “in rem jurisdiction” seizure of property = sufficient notice
d.      Rule 4(a) Form
                                                              i.      Signed by clerk, bear the seal of the court, identify the court & parties, be directed to the, & state the name & address of the ∏’s attorney. It shall also state the time w/in the ∆ must appear & defend, & notify failure to do so will result in default judgment
e.       Rule 4(b) Issuance
                                                              i.      If summons is in proper form, the clerk shall sign, seal, & issue it to the ∏ for service on ∆, a copy for each if multiple ∆s
f.       Rule 4(c) Service
                                                              i.      Summons served w/ copy of complaint.
                                                            ii.      Service may be effected by any person who is NOT a party & who is at least 18 years of age
g.      Rule 4(d) Waiver of service
                                                              i.      ∆ who waives service does NOT thereby waive any objection to the venue or to the jurisdiction of the court
                                                            ii.      ∆ has duty to avoid unnecessary costs of serving summons by waiving service after notice by ∏ of action
1.      Notice & request of waiver shall be in writing & addressed directly to the ∆ or manager officer/agent
2.      Shall be dispatched thru first class mail or other reliable means
3.      Shall be accompanied by a copy of the complaint & shall ID the court in which it has been filed
4.      Shall inform the ∆ of the consequences of compliance & failure to comply w/ request
5.      Shall set forth the date on which the request is sent
6.      Shall allow ∆ reasonable time to return the waiver, which is at least 30 days (60 if international)
7.      Shall provide an extra copy of the notice & request, & prepaid means of compliance in writing. If ∆ fails to comply then court shall impose the costs subsequently inferred in effecting service UNLESS ∆ shows good cause
                                                          iii.      ∆ not required to serve an answer until 60 days after (90 if international)
h.      Rule 4(e) Service Upon Individuals
                                                              i.      Pursuant to the law of the state in which the district court is located, or in which service is effected
                                                            ii.      By delivering a copy of the summons & of the complaint to the individual personally or by leaving copies
i.        Rule 4(h) Service Upon Corporations
                                                              i.      In a judicial district in the manner prescribed for individuals OR by delivering a copy of summons & of the complaint to an officer, managing or general agent, or to any other authorized person & maybe by mail
j.        Rule 4(i) Serving the US, Its Agencies, Corp, Officers, or Employees
k.      Rule 4(l) Proof of Service – affidavit if service made person other than US marshal or deputy marshal
l.        Rule 4(m) Time Limit for Service – must be w/in 120 days after filing the complaint, unless ∏ can show good cause
m.    Mullane v. Central Hanover Bank & Trust (US SC 1950) – newspaper ads warning of beneficiary & trust hearing
                                                              i.      Reasonably calculated method of notice must be given to parties or else violation of due process
2.     PLEADINGS & MOTIONS à rules 7, 8, 11, 12, 13, 14, 15
a.       Rule 7(a) Pleadings
                                                              i.      Complaint & answer; reply to a counterclaim, an answer to cross-claim, 3rd party complaint & answer
b.      Rule 7(b) Motions & Other Papers
                                                              i.      Application for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state w/ particularity the grounds therefore, & shall set forth the relief or order sought
a.      Rule 8(a) Claims of Relief
                                                              i.      Short & plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction & the claim needs no new grounds of jurisdiction to support it
                                                            ii.      Short & plain statement of the claim showing that the pleader is entitled to relief, AND
                                                          iii.      A demand for judgment for the relief the pleader seeks
b.      Rule 8(b) Defenses; Forms of Denial
                                                              i.      A party shall state in short & plain terms the party’s defenses to each claim asserted & shall admit or deny averments upon which adverse party relies. If w/o knowledge a party shall state so, having the effect of denial. Averments may be admitted & denied in part, specifically, & generally, & must be done so in good faith
c.       Rule 8(c) Affirmative Defenses
                                                              i.      In response to a pleading a party shall set forth affirmatively defenses (LIST in FRCP). When a party mistakenly designates a defense as a counterclaim or vice versa, the court shall still allow it if justice requires
d.      Rule 8(d) Effect of Failure to Deny
                                                              i.      If response is required, averments are considered to be admitted when not denied, except amount of damages
e.       Rule 8(e) Pleading to Be Concise & Direct; Consistency
                                                              i.      Pleading in the alternative à NOTICE PLEADING
f.       Haddle v. Garrison (US SC 1998) p. 341 (p. 349)
                                                              i.      Haddle’s complaint sufficient to proceed; does not warrant dismissal; no legal action need be stated in complaint; pleading in the alternativ

      How Initiated
1.      By motion, made separately from other motions/requests, & describing the specific conduct alleged to violate 11(b), after giving other party 21 days to correct such violation. Court may award prevailing party reasonable expenses & attorney’s fees incurred
2.      On its own initiative, the court may enter an order describing the specific conduct that appears to be in violation & direct the party to show cause why it has NOT violated 11(b)
                                                            ii.      Nature of Sanctions; Limitations à sanction imposed shall be limited to what is sufficient to deter repetition of such conduct/comparable conduct, including both monetary & non-monetary sanctions
1.      Monetary sanctions may NOT be awarded against a represented party for violation of 11(b)(2)
                                                          iii.      When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule & explain the basis for the sanction imposed
                                                          iv.      11(a) – 11(c) do NOT apply to disclosures & discovery papers subject to Rules 26-37
                                                            v.      Misrepresentations of LAW
1.      Walker v. Norwest (8th cir 1996) p. 356
2.      No diversity proven after warning by other party \ sanctions properly given
                                                          vi.      Misrepresentations of FACT
1.      Lawyer must make a reasonable inquiry into client’s allegations under the circumstances before filing suit
2.      Christian v. Mattel (9th cir 2003) p. 360
3.      No abuse BUT REMANDED to allow court to delineate factual & legal basis for its sanction orders
a.       Court must make an explicit finding that counsel’s conduct constituted or was tantamount to bad faith, BUT here, central basis for ruling = unclear
b.      Each sanction has its own requirements \ important that the grounds be separately articulated to assure the conduct at issue falls w/in scope of the sanctions remedy
5.     RULE 12 – Defenses & Objections & Pre-Answer Motions
a.       Rule 12(a) When Presented
                                                              i.      ∆ shall serve (a) w/in 20 days after being served summons & complaint, OR (b) w/in 60 days if service waived
                                                            ii.      Party served w/ cross-claim shall answer w/in 20 days after being served. ∏ shall reply to counterclaim w/in 20 days after service of answer or w/in 20 days after court order