Civil Procedure Attack Outline

I. Jurisdiction II. Erie III. Remedies IV. Pleading

1. Subject Matter Jurisdiction

Substitutionary Remedies 1. Stating a claim under the federal rules (R8)
Compensatory Damages
2. Personal Jurisdiction Liquidated, Statutory, and Punitive Damages

3. Due Process 2. Responding to the complaint

2. Specific Remedies
Remedial Hierarchy
4. Service of Process (Notice)

3. Ethical limitations and R11

5. Venue
3. Declaratory Relief

6. Removal

4. Financing Litigation 4. Amending the pleadings

7. Waiver American Rule
English Rule
Insurance and contingency fees
Public subsidies/ Professional Charity
Fee Shifting

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 I. Jurisdiction Checklist

Subject Matter Jurisdiction?

(FEDERAL QUESTION)

United States Constitution, Article III: Federal Courts Are Courts of Limited Jurisdiction:

1
Federal Question
18 U.S.C. §1331

Federal Question Basics: 28 U.S.C. §1331

 Does the claim arise under the constitution, treaties, or laws of the U.S.?
 Is the complaint well plead? E.g., does NOT plead possible defenses as basis for FQ?
 Remember, NO $ Amount limit: Can have SMJ over a $1 dispute.
 Federal Jurisdiction may be exclusive to federal court (e.g., patent or copyright claims); or
 Federal Jurisdiction may be concurrent with state court jurisdiction (e.g., civil rights or federal employment liability act (FELA)
claims), subject to the right of removal.

Federal Question Flow Chart

Yes Does the π’s well pleaded complaint allege an express or implied federal cause of action? No

Does the π’s well pleaded complaint allege a state law cause of action in which federal
Yes law is an essential element?

Does the federal law that is an element authorize a private right of action?
No
Yes Grable & Sons v. Darue: No
Federal court has federal question jurisdiction over state law claim if it
necessarily states federal issue, actually disputed and substantial, which
federal forum may entertain without disturbing congressionally approved There is
There is FQJ balance of federal and state judicial responsibilities. Is there a substantial Q NO FQJ.
Yes
of Fed Law? -2-
 SUBJECT MATTER
JURISDICTION?
(DIVERSITY)

Constitution, Article III: Federal Courts Are Courts of Limited Jurisdiction:

2
Diversity
18 U.S.C. §1332

DIVERSITY OF CITIZENSHIP BASICS

1) COMPLETENESS: Diversity must be complete. There cannot any D’s or P’s that are residents of the same state. All π’s must be different from all
’s.
2) DATE: Diversity is calculated as of the date the action was instituted.
3) CITIZENSHIP (Domicile)
a) PERSONS: Where you were born and continues through your life unless:
i) You physically change your state; and
ii) You have the intention of remaining in the new state for the indefinite future.
iii) If person has multiple homes in different states, look of that person’s center of gravity by looking at:
(1) Where does the person live?
(2) Where is the family?
(3) Where does the person pay taxes?
(4) Where does that person work?
(5) Where are the cars licensed?
(6) Where does the person vote?
b) CORPORATIONS:: Every corporation has two domiciles:
i) state of incorporation; and
ii) its principle place of business (usually where the corporate headquarters is located. Two tests for principle place of business:
(1) Nerve Center Test – place where corporate decisions are made; or
(2) Muscle (Plurality) Test - place where the corporation does most of its manufacturing or service providing.
c) UNINCORPORATED Associations (e.g., labor unions, partnerships): Cumulate domiciliary state of each member. So, a national labor union like the
Teamsters could never pass the federal diversity test because it has members in all 50 states.
d) PARTIES IN REPRESENTATIVE ACTIONS (e.g., representative of a child, probate, or derivative actions or class action suits:
i) Classical Rule for Derivative Actions & Class Actions: diversity is based on the citizenship of the representative.
ii) Modern Rule for Probate and All Others: diversity is based on the citizenship of the represented party.
4) AMOUNT IN CONTROVERSY: must be over $75,000, exclusive of interest and costs but inclusive of punitive damages.
5) AGGREGATION RULES:
a) Single Parties can aggregate all claims, even if unrelated.
b) Multiple Parties: no aggregation unless the claims are joint, such as undivided interest claims (i.e., ’s jointly liable); π’s allegation of amount

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 SUBJECT MATTER
JURISDICTION?
(SUPPLEMENTAL )

SUPPLEMENTAL JURISDICTION CREATED BY JUDICIAL INTERPRETATION AND CODIFIED

IN 28 U.S.C. §1367

3.
Supplemental
Jurisdiction
18 U.S.C. §1367

SUPPLEMENTAL JURISDICTION BASICS

1) §1367: Supplemental jurisdiction
a) §1367(a): Matters originating from a common nucleus of operative facts are considered part of the same case or controversy for Article III purposes.
b) §1367(b): Limits reach of Supplemental jurisdiction in diversity cases — exercise of jurisdiction must be consistent w/§1332 (diversity statute)
i) No supplemental jurisdiction; must have independent jurisdiction for claims by  against persons made parties by:
(1) Rule 14 (Impleader)
(2) Rule 19 (Compulsory Joinder of Parties) Remember, §1367(b) applies ONLY if
(3) Rule 20 (Permissive Joinder of Parties) diversity is the sole basis for being in
(4) Rule 24 (Intervention) federal court.
c) §1367(c) — gives Court discretion to hear cases.
i) Says that the Court may decline to exercise supplementary jurisdiction if:
(1) Claim raises a novel or complex issue of state law (in Ameriquest the court decided it could rule despite this based on existing precedent…truly
discretionary.)
(2) The non-fed claim substantially predominates over the claim(s) over which the dc has original jurisdiction
(3) The Court has dismissed all claims over which it has original jurisdiction
(4) In exceptional circumstances – other reasons
ii) Decisions may be appealed
d) §1367(d) — Statute of Limitations will be tolled so long as federal court is hearing the claim, then + 30 days to file state claim (unless State allows longer)
i) Some states have savings statutes- that toll the SOL under circumstances where a supplemental jurisdiction claim is made- P then has a limited amount
of time to refile in state if dismissed.
ii) Not all states have such rules; 1367(d) creates a 30 day window.
iii) SCOTUS has held 1367 (d) unconstitutional as it relates to claims against a state agency that did not consent to the provision.

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 Supplemental Jurisdiction Flowchart
18 U.S.C. §1367

Same case or controversy? No This is a basic requirement

No SMJ of §1367(a).

Yes

Federal Question Fed. Ques. §1367(b) limitation does

or not apply to Fed Ques.
Diversity? SM
J

Diversity
 §1367(b) limitation does
Claim by π or ?
not apply to claims brought
SM
by .
J

Party added under what 14 19 20 () 24 This is the §1367(b)

No SMJ limitation.
Rule?

20(π), 23
The literal language of §1367 lets the claim in. But
the legislative history indicates that Congress wants
the claim to stay out. The Courts of Appeal are
TROUBLE! split. The Supreme Court granted certiorari in 2000,
Justice O’Connor recused, and the remaining
justices split 4-4 in Free v. Abbott Lab., Inc.

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 PERSONAL JURISDICTION

CONSTITUTIONAL BASES: STATUTORY BASIS

MODERN SERVICE
14TH AMENDMENT ARTICLE IV, §1: State Federal Rule 4 (a-e, h, n)
DUE PROCESS FULL FAITH & CREDIT Long Arm Rule 4(k)(2)
REQUIREMENT CLAUSE Statute Reasonably Calculated Under the
Notice And Opportunity Full Faith and Credit Will Be Circumstances to Give Notice
Can Restrict Constitutional Personal Mullane v. Central Hanover Bank
to Be Heard Given in Each State Jurisdiction But Cannot Expand

Traditional Bases of Personal

Jurisdiction
CONSENT
EXPRESS: Carnival Cruise Lines PHYSICAL PRESENCE IN STATE
DOMICILE Tag Jurisdiction Lives!
IMPLIED: Hess v. Pawloski Gordon v. Steele: Kid at College
Burnham v. Superior Court
WAIVER: Insurance Corp of Milliken: WY Domicile Served in CO
Ex-Husband Served While Visiting Kids
Contract / Agent Appointment / Shows up to Litigate

MODERN BASIS OF PERSONAL JURISDICTION

must have sufficient minimum contacts within the forum state such that maintenance of the suit
does not offend traditional notions of fair play and substantial justice.
International Shoe Co. v.

S UFF IC I E N T M I N I M U M C O N T ACT S F AIR P L AY AND S U B ST A N T I A L J U ST I C E

(CAPFI) (BLIM FEW)

1. Cause of Action: Where did the cause of action arise? 1. Burden on the Parties: Economic, time, relative burdens.
2. Activities: Scrutinize these activities in the forum state: 2. Law: What forum’s law?
a. Systematic & Continuous = General Jurisdiction
3. Interest of the State: in providing a forum for & protecting its
b. Sporadic = Specific Jurisdiction
citizens.
c. Direct vs. Indirect
d. Dangerous activity?
4. Multiplicity of Suits: Will they all be resolved?
3. Purposeful Availement: Has  purposefully availed itself of
the benefits & protections of forum’s laws? (More readily found 5. Forum: Alternative forum available? Fair & convenient?
for commercial transactions. Consumer purchases NOT 6. Evidence: Where is the bulk of the evidence?
commercial transaction) Hanson v. Denkla. 7. Witnesses: Where are the witnesses?
4. Foreseeability: Could  foresee or expect being haled into
court? World Wide Volkswagen
5. Initiate: Did  initiate contact with forum state?
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 VENUE:
Underlying Policies:  Judicial Efficiency;  Limit Forum Shopping;  Convenience of Parties

Possible Exam Questions

Venue Rules: 28 U.S.C. §1391 Transfer of Venue: 28 U.S.C. §1404 Forum Non Conveniens

Federal Courts NEVER transfer to State Public vs. Private Factors - Balancing
Venue in diversity cases. § 1391(a). Courts. Use FNC in such case. Test
1. Any dist. where any  resides, if all ’s
reside in the same state. Private Interest Factors
State Courts NEVER transfer to federal 1. Access to sources of proof
2. Any dist. Where a substantial part of the
Courts or to different States. Use FNC in 2. Ability to compel attendance of witnesses
controverted events occurred or where
such case. 3. Convenience to voluntary witnesses
the disputed property is located. Can
have venue in multiple locations. 4. Difference in substantive law that will be
3. Where any  is subject to PJ only if no applied in new forum is not decisive in
§1404 Balancing Test
venue available under (1) or (2) above. dismissing on grounds of FNC, but could
Convenience of parties & witnesses + be relevant if the law in the alternative
Interests of justice must substantially forum were completely inadequate. Piper.
Venue in all other cases. § 1391(b). outweigh π’s interest in choice of forum.
Public Interest Factors
1. Same as in diversity cases, above. 1. Local interest in having disputes resolved
2. Same as in diversity cases, above. Choice of Law: Diversity Cases Only locally
3. Where any  can be found only if no 2. Court congestion
venue available under (1) or (2) above. Laws of the transferring state apply unless 3. Familiarity with law
Different language, but probably means venue was improper, in which case receiving 4. Avoiding unnecessary choice of law
same thing. Court applies it’s own laws. problems
5. Jury duty burden on citizens in a
Venue of corporate ’s § 1391(c). Venue Exam Tricks
1. Anywhere corp. is subject to PJ. Transferring Court can only send a case to a General Rule
2. Analyze as if fed gov’t is separate state. court where the “action could have been FNC is tough on π’s, especially in light of
commenced or initiated.” Therefore, the statutes of limitation and Pers. Juris. Courts
Venue for aliens 28 U.S.C. § 1391(d). receiving Court must have all 3, even if the know this and won’t grant FNC unless:
transferring Court doesn’t:.
1. Any alien, incl. alien corps., can be sued 1. There is an alternative forum;
in any district. 1. Subject Matter Jurisdiction 2.  waives statute of limitations defense;
2. Personal Jurisdiction 3.  consents to jurisdiction in alternative
3. Venue forum.
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 Removal: 28 U.S.C. §1441
STATE Court FEDERAL Court

4. State to Federal ONLY; 1. Completely Discretionary

5. ALL ’s must consent; 2. Must have been qualified to grant original
6. ORIGINAL ’s only; no counterclaim jurisdiction.
’s 3. May grant supplemental jurisdiction as
long as at least one separate and
independent federal claim eligible for
removal.
No Removal for In-State
Defendants in Diversity-Only
Cases Non- Federal Question Claims
Federal Question Claims
Pass Through Supplemental Jurisdiction
Pass Through Federal Question Filter
Filter
28 U.S.C. §1331
28 U.S.C. §1367

Federal Question Flow Chart Same Case or Controversy?

Common Nucleus of Facts?

Yes Does the π’s well pleaded complaint allege an No
express or implied federal cause of action?
Meets Supplemental
Jurisdiction Requirements
Does the π’s well pleaded complaint allege a under §1367?
Yes state law cause of action in which federal law
is an essential element?
Yes No

Does the federal law that is an element

authorize a private right of action? No
§1441(a) Not Part of Same
Court May Exercise or Constitutional Case
Decline Per Authority
Yes
Granted under §1367(c)
Separate &
There is Independent Claim?
There is NO FQJ.
FQJ

§1441(c)
Court May Keep - 8 -
§1441(a) Or
Court Must Hear Court May Remand
 Waiver

Consolidation of Defenses
What May NEVER Be Waived? What May Be Waived? Rules 12(g) and 12(h)(PG 39)
(SEE PLEADING)

SMJ Is A Constitutional Issue Personal Jurisdiction

and Cannot Be Waived.
Notice
Parties to an Action May
Service of Process
NEVER Consent to Waiver of
SMJ Venue

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 Erie Doctrine Flowchart
1) The discouragement of forum shopping and 2) avoidance of inequitable administration of the laws

Is state law substantive / black letter law? Fed Rule on Point? Possibly/No Do BOTH
NO(look at twin aims of Erie before deciding) (Grey Area)

Byrd Test YES Hanna Dicta

Is state rule bound up with (implementing of) state created rights& obligations? Does
Analyze
it regulate
in lightprimary
of twinbehavior?
aims of Erie.
YES 1. Forum Shopping?
Hanna Holding 2. Inequitable admin. of the laws?
--Is there a conflict between the Fed Rule and the State Practice?
--If no, the court can apply both with no problem
--If yes, is it constitutional and in line with the Rules Enabling Act? (Doesn’t abridge, enlarge, or modify any substantive right)
State
--If yes, lawuseapplies
then the Fed(f/Rule
Erie & RDA)
--If no (it DOES abridge, enlarge, or modify a substantive right), then use the State Rule Y N Y N

State law Rule of form & mode. State law Fed law
BALANCE

Valid if reasonable person would consider it procedural

Outcome
Fed. Countervailing Interests (for fed law)determinative test (for state law)
(always have uniformity, but weakIfon
outcome
its own.would
Byrdbe different
was depending
judge/jury on which
relationship law
which applies (i.e.
outweighed statute of
outcome limitations is very determinative if its run
determinacy)
he effect of preventing a re-filing in the same district court in which the case was earlier filed.
ederal court judgments the same effect they would give their own State court judgments, but must grant them the same effect the Federal court would. them the same effect the Federal court would

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 III. Remedies

1. SUBSTITUTIONARY (LEGAL) REMEDIES (TYPICALLY GETS JURY TRIAL) FINANCING LITIGATION

a. Compensatory damages 1. American Rule
i. Economic a. Hourly flat rate
b. Legal Insurance
ii. Non-economic: Emotional distress, pain and suffering, etc. Typically
c. Contingency Fee
three times the amount of economic damages 2. English Rule
b. Liquidated a. Contractual fee shifting
c. Statutory b. Common law/ Common Fund
i. Example, Federal truth in lending; copyrights c. Fee shifting statutes (ex., §1983)
d. Punitive 3. Fee shifting
i. Courts reviewing punitive damages awards must consider three 1. By contract
a. May be asymmetrical- but often interpreted as symmetrical
guideposts:
2. By common law
1. (1) The degree of reprehensibility of the defendant's a. When the P has brought a frivolous suit.
misconduct; 3. By statute
a. Dissimilar acts independent from the acts upon which a. Some statutes authorize courts to award fees to parties "in any
liability was premised may not serve as a basis for action which has resulted in the enforcement of an important
punitive damages. However, similar acts MAY be a right affecting the public interest." Example- civil rights cases
valid basis. (1988(b))
b. NOT symmetrical
b. If state (A) has a law, acts that occurred in violation of
i. Exception: Fraudulent, frivolous, or groundless claims.
it outside of (A) may not be the basis for punitives c. Catalyst Theory generally rejected:
2. (2) The disparity between the actual or potential harm suffered i. A party may only be considered a “prevailing party” for the
by the plaintiff and the punitive damages award; and purposes recovering attorney's fees and costs under
3. (3) The difference between the punitive damages awarded by applicable federal statutes if that party has secured a
the jury and the civil penalties authorized or imposed in judgment on the merits or a court-ordered consent decree.
comparable cases. (Thus they are not “prevailing” if D voluntarily changes
behavior- and are thus not entitled to attorney’s fees(when
ii. Amount of punitive damages:
suing for an injunction, not money damages)).
1. Single digit ratio to damages recommended. ii. Counter argument to this is that it creates an escape hatch
2. Presumption against damages that exceed single digits. (so 9x that allows a defendant to escape a statutory obligation to
is most) pay a plaintiff's counsel fees, even though the suit's merit
3. Can overcome ratio presumption when there is a particularly led the defendant to give the plaintiff the redress sought in
egregious act but it only caused a small amount of economic the complaint.
harm. d. Waiver of statutorily awarded fees: A federal court does not
have a duty to reject a proposed settlement because it includes a
e. Others; Replevin, Ejectment, Writ of Mandamus, Habeas Corpus
waiver of statutorily authorized attorney's fees
2. SPECIFIC (EQUITABLE) REMEDIES (TYPICALLY GETS BENCH TRIAL) i. The question is instead the overall fairness of the settlement
a. Injunctions agreement.
b. Constructive trust ii. Court may reject waiver if defendant had no realistic
defense on the merits, or if the waiver was part of a
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 c. Recession vindictive effort to teach counsel a lesson that they had
d. Accounting action better not bring such cases
e. Quite Title

4. Offer of judgment (R68)

3. Remedial hierarchy a. A defendant may offer to allow judgment on specific terms,
a. Rules of priority with cost then accrued, at least 14 days before trial.
i. Inadequacy of remedy test. (are $$ damages inadequate?) b. If P rejects:
ii. Balancing test: The determination of whether to issue an injunction c. And award is SMALLER than offer, cost are tolled at the time
involves a consideration of the hardship on the plaintiff if relief is the offer was made.
denied as opposed to the hardship to the defendant if relief is granted. d. And award is LARGER than offer, P gets full cost.
iii. Very fact specific; requires you to ask, what if? ____________________________________________________________
4. Declaratory relief PROVISIONAL REMEDIES
a. May be chosen even if other legal options are available 1. Preliminary Injunctions
b. Under the DJA 28 USC §2201, 2202, parties may seek a declaration of their a. Rule 65- The court may issue a PI only on notice to the adverse
rights without coercive relief. party.
c. Not available to resolve hypotheticals b. Appeals court has limited review of preliminary injunctions,
d. Serves as basis for res judicada- binding. limited to
i. Error of law
ii. Abuse of discretion
1. TEMPORARY RESTRAINING ORDERS c. Often times the decision about a preliminary injunction will
1. Rule 65- May be issued w/o notice to the adverse party in limited situations: essentially end the case.
a. Only if specific facts clearly show that immediate and irreparable injury, loss, d. 65(C) requires that movant of a PI or TRO post a bond as security
or damage will result before the adverse party can be heard in opposition, AND in an amount that the court considers proper to pay the cost and
b. The movant certifies in writing any efforts made to give notice and the reasons damages sustained by any party found to have been wrongly
why it should not be required. enjoined or restrained.
******************************************************************************* i. However, some courts will make an exception if the movant
************ cannot afford the bond- either waiving the requirement, or
2. Other forms of provisional relief: making it very small.
i. Attachment ii. The only recourse a wrongly restrained or enjoined party has
ii. Garnishment against the order is against the bond- if there is no bond, they
3. Due process; replevin, and property interest. are SOL.
a. Due process under the Fourteenth Amendment requires that affected parties in a e. Regular test:
replevin action must be notified in a timely manner and given an opportunity to be i. Four factors must be met before a preliminary injunction is issued:
heard prior to a prejudgment seizure. This applies to both permanent and temporary i. (1) the plaintiff will likely suffer irreparable harm
deprivations. absent injunctive relief; (SC rejects more lenient
b. The requirements of the 14th amendment are only applicable to when there is state “possibly” test)
involvement. Thus, private actors may repo without a hearing. (if done lawfully and ii. (2) the plaintiff is likely to prevail on the merits;
peacefully) (rejected in alternative test)
c. There are “extraordinary situations” that justify postponing notice and opportunity iii. (3) the defendant will not be harmed more than plaintiff
for a hearing: is helped by the injunction; and
i. The seizure has been directly necessary to secure an important governmental or iv. (4) granting the injunction is in the public interest.
general public interest ii. Alternative test:
ii. There has been a special need for very prompt action i. The party seeking a preliminary injunction does not have
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 iii. The state has kept strict control over its monopoly of legitimate force: the person to prove that it is reasonably certain to succeed on the
initiating the seizure has been a government official responsible for determining merits.
that it was necessary (i.e, internal revenue, national war effort, protection against ii. Instead, the injunction is proper if the harm that would issue
bank failure, Food and drug control) absent a preliminary injunction is sufficiently serious, even
d. Three factors for determining if an individual has received due process: where there is only a fair chance of success on the merits.
(1) The private interest that will be affected by the official action, (2) The risk of an iii. Alt. test is in doubt.
erroneous deprivation of such interest through the procedure used and the probable
value, if any, of additional or substitute procedural safeguards. (3) The governments
interest and the burden on it of following a different procedure.

PLEADING
Filing a complaint
1) Requiring and forbidding specificity in pleading
a) Rule 8(c) requires (1) a statement of the basis for the court’s jurisdiction, (2) a short and plain statement of the claim showing that the pleader is entitled
to relief, and (3) a statement of the relief the plaintiff is seeking.
i) “Basis for the court’s jurisdiction”
(1) The complaint must contain allegations supporting the courts subject matter jurisdiction.
(2) Form 7 provides an adequate jurisdictional pleading. (PG 173)
(3)
ii) “short and plain statement”
(1) For most claims, not all elements or facts are needed. May plead generally. If the form is in the FRCP, it is sufficient. Judges are to construe the
complaint liberally. Pleadings must include generally include sufficient support for the claims included.
(2) For complaints that are not in the forms…the complaint must contain enough factual allegations to raise the a right to relief above a speculative
level. The claim must be more than possible; it must be plausible.
(3) Alternative pleading: Complaints may be inconsistent in legal theories. However, will have to elect one legal theory before judgment. (But can
wait until after verdict.)(Facts may be inconsistent if pleader has a reason why they wouldn’t know which version is true)
(4) FRCP 9(b): Fraud Claims- Requires more specificity, must provide the time, place, and nature of the alleged misrepresentations to be disclosed
to the party accused of fraud. Two components:
(a) Must state with particularity the circumstances constituting fraud.
(b) May plead generally persons malice, intent, knowledge, and other conditions of a person’s mind.
(i) Elements of fraud- false statement, (1)D knew it was false,(2) Intended P to rely on it,(2) P relied on it,(1) and P suffered damages.
2) Allocating the elements of a claim
a) Whichever party has the burden of pleading an issue must also produce evidence to demonstrate that allegation. (CANNOT use 12(b)(6) motion if its
your burden to plead.)
b) Specific pleading requirements are mandated by the FRCP or the statute in question. If it’s not in the statute, must rely on how such issues are typically
handled under FRCP.
c) Court will look at the words of the statute the claim arises under.
d) The list in rule 8(c) of affirmative defenses is not exhaustive.
e) Distinguishing Twombly from Block: Block is a burden of pleading case- but Twombly was a ‘specificity of pleading’ case.

Ethical Limits in Pleading

i. Rule 11 (b): By submitting to the court a written motion, pleading, or other paper-by signing, submitting, or later advocating it- a party
certifies that to the best of their knowledge, information, or belief, formed after a reasonable inquiry:
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 1. It is not being presented for any improper purpose such as to harass or delay.
2. The claims, defenses, and other legal contentions are warranted by existing law or by nonfrivolous arguments for changing or modifying it.
3. The factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or
discovery
4. The denials of factual contentions are warranted on the evidence or are reasonably based on belief or a lack of information
ii. An award of monetary sanctions pursuant to FRCP 11 is proper where an attorney has filed a defective complaint without subsequently
amending or dismissing the complaint.
iii. Rule 11 permits the court to sanction an attorney only for conduct regarding pleadings, written motions, and other papers that have been
signed and filed in a given case. (Split of authorities on this issue- some courts say a pattern of conduct can be taken into account in
fashioning a sanction- in order to create an effective deterrence ). Court may act sua sponte, or at opposing parties motion.

i. Procedure- what procedure should an attorney who wants R11 sanctions imposed follow?
SAFE HARBOR PROVISION 1) 11(C)(2)Serve other party with notice ( a letter is treated the same as a
motion)
2) Must be made separately from other motions 3) Must describe the conduct that violates R11, give them 21 days to correct,
if fixed within 21 days the motion does not need to be filed with the court
Responding to the Complaint
1. Default (R55)
a. Default damage awards: If the D defaults, the damage award cannot exceed those asked for in the complaint.
b. A D may choose to default for the purposes of a collateral attack.
2. Pre-Answer Motions
a. Motion to dismiss rule 12(b)
a. (1) lack of subject matter jurisdiction
i. In assessing the merits of an FRCP 12(b)(6) motion, a court may only dismiss a complaint if, assuming all factual allegations of the
complaint are true, it is clear that the plaintiff cannot prove a set of facts in support of his claim .
b. (2) lack of personal jurisdiction
c. (3) Improper venue
d. (4) Insufficient process
e. (5) Insufficient service of process
f. (6) Failure to state a claim upon which relief can be granted
g. (7) Failure to join a party under rule 19
i. A motion to dismiss tolls the clock under 12(4)(a)
b. Motion for a more definite statement (rare and mostly subsumed by 12(b)(6))
c. Motion to strike
a. Allows party to challenge part of a pleading that fails under substantive law, even though the rest of the pleading states a claim or defense.
b. Can be used to force removal of irrelevant and prejudicial allegations in a pleading. The court will entertain a motion to strike any “redundant,
immaterial, impertinent, or scandalous matter”.
d. Motion for judgment on the pleadings
a. If D does not deny any of the allegations, but just presents an excuse, or if D makes it clear that the SOL has run on P’s claim
b. Might be granted if the court thought the law clear and that further development of the facts would not be helpful to the trier of fact.
e. Waiver of defenses:
a. The following defenses are waived if not raised the first responsive pleading. (motion or answer)
i. Personal jurisdiction

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 ii. Venue
iii. Insufficient process
iv. Insufficient service of process.
b. Defenses that do not have to be raised in pre-trial motions or answer:
i. Subject matter jurisdiction
ii. Failure to join an indispensible party
iii. Failure to state a claim

3. Answer
a. Time Limits:
i. Unless a different time is specified by R12 or federal statute:
a. D must answer within 21 days after being served with the summons and complaint; OR
b. If D has timely waived service under 4(d), within 60 days after the request for a waiver was sent, or 90 days if outside the U.S.
ii. IF D files a 12(b) motion, the clock is stopped for 14 days.
b. Denials
i. Failure to deny is treated as an admission.(other than the amount of damages)(only of material facts)
1. General- Very difficult to do and not get caught up in R11.A general denial that denies things that are clearly true- is ineffective and
treated as an admission.( an ineffective denial won’t result in admission per se, but if the circumstances require it (such as being
misleading during discovery) the court will use the power of equitable estoppel to make it an admission. Ask, was the general denial
in good faith?
2. Specific- Can deny paragraphs and sentences
ii. Can deny based on lack of information
c. Admissions
i. Can change mind about admissions; see Amendments.
d. Counter-claims
i. Counter claim need not be related to claim against D.
1. Compulsory: D’s counter claim based on same transaction as P’s claim- it must be asserted in the action or it will be barred.
2. Permissive: If D’s claim against P is unrelated to P’s complaint. D may choose to just do a separate lawsuit.
e. Affirmative defenses
i. Failure to raise an affirmative defense in your answer will cause it to be waived. However, see Amendments.
ii. Failure to raise a new matter in the answer bars it from being brought up in trial. However, see Amendments.
1. accord and satisfaction;
2. arbitration and award;
3. assumption of risk;
4. contributory negligence;
5. discharge in bankruptcy;
6. duress;
7. estoppel;
8. failure of consideration;
9. fraud;
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 10. illegality;
11. injury by fellow servant;
12. laches;
13. license;
14. payment;
15. release;
16. res judicata;
17. statute of frauds;
18. statute of limitations; and
19. waiver.
20. Etc. (not exhaustive)
4. Reply
a. If there is a counter-claim designated as a counter-claim, P must reply.

5. Amendments
a. Legally insufficient- can’t just state D did XYZ, I want this relief- must have some legal theory.
i. Where despite all the facts the law provides no relief
ii. Can't fix by changing the facts-no amendment will fix it. Can't fix facts to be what the court wants to hear.
b. Factually insufficient
i. There aren't enough facts to meet the elements of claim.
ii. Can be fixed by amending the complaint.
c. When Amendments are allowed:
i. As a matter of course
1. Party may amend its pleading once as a matter of course within:
a. 21 days after serving the original (before a responsive pleading is served) or
b. If the pleading is one to which a responsive pleading is not required, such as the defendants
answer, anytime within 21 days after that pleading is served.
ii. After or during trial (or after 21 days has expired)
1. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should
freely give leave when justice so requires.
2. “Freely give leave”: Leave shall be freely given in the interest of justice. (COURT SHOULD LOOK FOR BAD FAITH, OR
PREJUDICE, OR UNDUE DELAY OR ANY OTHER REASON TO DENY THE MOTION.
ii. A defendant may amend its answer to deny a fact which it had previously admitted. Absent an element of bad faith on the part of the
Defendant, courts will generally grant a Defendant leave to amend his answer to a complaint unless it will clearly prejudice the ability of the
Plaintiff to proceed with his suit.
1. But there is surprise to the plaintiff! The plaintiff can ask for a continuance per 15(b)(1)
d. Wrong person sued
a. If the amendment changes the party or the naming of the party against whom a claim is asserted:
i. If “relation back rule” is satisfied and if, within the period provided by Rule 4(m) (within 120 days of filing complaint.)for serving the
summons and complaint, the party to be brought in by amendment: (1) received such notice of the action that it will not be prejudiced
in defending on the merits;(same transaction is being sued on as original) and (2) knew or should have known that the action would
have been brought against it, but for a mistake concerning the proper party's identity.
e. Relation back of the amendment
a. An amendment to a pleading relates back to the date of the original pleading when:
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 i. (A) the law that provides the applicable statute of limitations allows relation back;
ii. (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be
set out — in the original pleading.
iii. The critical issue is whether original complaint gave notice to the defendant of the claim now being asserted
iv. When a complaint is found to “relate back”, it is deemed to have been filed the same day the original complaint was.
f. Supplemental pleading
a. Can be used to call courts attention to material facts that occurred after the filing of the original complaint.
b. Only permissively allowed, not as a matter of right.

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