iv Pro Outline
Saturday, June 28, 2008
7:20 PM
1. Lawsuit
A. To begin a lawsuit
1.File Complaint
2.Court issues summons
3.Service of complaint and summons to D
B. D’s options
1.File answer (RULE 12–Answering a Complaint)
a. Def: Response to the complaint including affirmative defenses
b. Service of answer
1. Must serve within 20 days after being served
2.File motion to dismiss (Rule 12b) (TO OUTLAST THIS MOTION, DRAFT COMPLAINT WELL)
a. Allows D to make defenses by motion
b. Defenses:
1. Lack of SMJ
2. Lack of PJ
3. Improper venue
4. Insufficiency of process
5. Insufficiency of service of process
6. Failure to state claim upon which relief can be granted
7. Failure to join a necessary party under Rule 19
3.File motion for more definite statement (Rule 12e)
a. When a pleading is so vague or ambiguous that a responsive pleading is hard to make
4.File motion to strike (Rule 12f)
a. Take out any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter from any pleading (usually for 20 days after service)
**Note: FYI Rule 12g and 12h
· Rule 12g: Consolidation of Defenses in Motion
· Rule 12h: Waiver or Preservation of Certain Defenses
· PJ will be waived if not raised in time
2. Jurisdictional requirements of a case (all three required for a properly filed case)
A. Personal jurisdiction
B. Subject matter jurisdiction
C. Venue
3. Necessary for a Properly Filed Case
A. Personal Jurisdiction
1. Types
a. In rem
1. Power over person’s property
b. In personam
1. Power over person
c. Quasi in rem
1. Power over person when resolving disputes over property
2. Governed by Pennoyer Principles
a. Power (General, Specific, Transient)
1. Test: Comes from contact with state
2. Ends at state’s borders
3. State’s power cannot be challenged when dealing with:
A. State created status
1. Marriage
2. Incorporation
B. Property located within the state
4. Can be
A. Over person (in personam)
1. Acquired tag style service within state boundaries
B. Over property (in rem)
1. Asserted over property only in a dispute about the property
2. Personal service NOT REQUIRED
C. Over person, but only to the extent of their property (Quasi-in rem)
1. Personal service NOT REQUIRED
5. Types
A. General Jurisdiction
B. Specific Jurisdiction
C. Transient Jurisdiction
b. Consent (After service of process)
1. Jurisdiction by consent
A. Can be through a contract
B. Rules
1. Forum selection clause
a. Def: Limit the forum that a litigatory matter may be brought in by appellant
b. Limitations
i. Cannot be in bad faith to discourage the pursuit of legitimate claims
ii. Consent cannot be obtained through fraud or overreaching
c. Elements
i. Notice of clause AND
ii. option to reject with impunity (reasonable parity of bargaining po
PJ or SMJ
iii. Only establishes right to contest service of process and method of service
iv. Does not apply to foreign parties, minors or incompetents
c. Service on Individuals (Rule 4e)
i. Can be made:
A. Pursuant to a specific federal statute
B. Pursuant to state law (certified mail)
C. By waiver under Rule 4d
D. By personal service (tag)
E. By leaving at D’s home to anyone of suitable age and discretion
F. By leaving with an authorized agent
d. Service on Corporations (Rule 4h)
i. Can be made:
A. Pursuant to federal statute
B. Pursuant to state law
C. By waiver under Rule 4d
D. To officer, managing agent, or general agent
e. Territorial Limits (Rule 4k)
i. Service establishes J over D who is subject to J in state where federal court is located
ii. Non US residents & people who have contact with nation as a whole but lack contact with any one state
A. Claim must arise out of federal law
B. D beyond jurisdictional reach of any state and no federal statute applies to confer J
C. Exercise of PJ does not offend Due Process (meets minimum contacts test with nation)
3. Establishment of PJ
