Civil Procedure Outline

Part VII: Initial Documents in a Law Suit in Federal Court

Plaintiff’s Claim for Relief: FRCP 8(a) requires that a plaintiff’s claim include: (1) a short and plain statement
of the grounds for the court’s jurisdiction (SMJX); (2) a short and plain statement of the claim (notice pleading);
and (3) a demand for the relief sought (damages, injunction, etc.).
A. The claim must plead facts supporting a plausible claim (Twombly, Iqbal). The claim must not include
merely legal conclusions, but must give enough facts to support the reason for a claim against the
defendant.
B. Policy concerns: (1) courts want to hear cases based on the merits, not on filings; (2) courts don’t want
to put Ds through unnecessary proceedings.

Defendant’s Responses: FRCP 8(b) requires that a defendant’s response to a pleading (1) state in short and
plain terms its defenses to each claim asserted against it; and (2) admit or deny the allegations asserted against it
by an opposing party.
A. DENIAL: FRCP 8(b)(2): a denial must fairly respond to the substance of the allegation.
B. DENY/ADMIT IN PART FRCP 8(b)(4): a party that intends in good faith to deny only part of an
allegation must admit the part that is true and deny the rest
C. LACKING INFO FRCP 8(b)(5): A party that lacks knowledge or information sufficient to form a
belief about the truth of an allegation must so state, and the statement has the effect of denial. Lacking
information constitutes a denial.
D. FAILURE TO DENY FRCP 8(b)(6): An allegation—other than one relating to the amount of damages
—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive
pleading is not required, an allegation is considered denied or avoided. Failure to deny constitutes an
admission on any allegation except damages.
E. “LACKING KNOWLEDGE” WHEN HAVING KNOWLEDGE: Pleading a lack of knowledge may
be construed as an admission when the matter is one as to which the defendant has knowledge or
information, or it is “peculiarly within the control and knowledge” of the defendant. (Crompton)

Affirmative defenses: Rule 8(c)(1) requires that a party affirmatively state any avoidance or affirmative
defense (list in FRCP). Must plead affirmative defenses in answer or they are waived.

Alternative/Inconsistent Claims and Defenses: FRCP 8(d)

A. ALTERNATIVE CLAIMS FRCP 8(d)(2): A party may set out two or more statements of a claim or
defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party
makes alternative statements, the pleading is sufficient if any one of them is sufficient.
B. INCONSISTENT CLAIMS FRCP 8(d)(3): A party may state as many separate claims or defenses as it
has, regardless of consistency.
C. PURPOSE: Plaintiffs don’t need multiple law suits in order to find all the facts of a case; judicial
economy; must have legal basis for adding claims; defenses can also be in the alternative.
D. SINGLE SATISFACTION: A plaintiff may plead claims in the alternative (Rule 8(d)(2)-(3)), but may
not recover upon both counts. A plaintiff can only have but one satisfaction. (McCormick).

Pleading with Particularity (Heightened Pleadings): FRCP 9

 A. FRAUD OR MISTAKE: FRCP 9(b): In alleging fraud or mistake, a party must state with particularity
the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a
person's mind may be alleged generally.
a. Purpose: prevention of frivolous suits that could be embarrassing or damaging to a party’s
reputation
B. SPECIAL DAMAGES MUST BE SPECIFICALLY STATED: FRCP 9(g): If an item of special
damage is claimed, it must be specifically stated.

Signing Pleadings and Sanctions: FRCP 11

A. POLICY FOR RULE 11: (1) proper motivation for filing; (2) soundness of legal arguments; (3) basis
for factual allegations; (4) basis for denials
B. SIGNATURE RULE 11(a) Every pleading, written motion, and other paper must be signed by at least
one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented.
C. REPRESENTATIONS TO THE COURT RULE 11(b) By presenting to the court a pleading, written
motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or
unrepresented party certifies that to the best of that person’s knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-
frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(inquiry into the law)
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified,
are reasonable based on belief or lack of information.
D. SANCTIONS RULE 11(c): Sanctions are left to the discretion of the court.
a. RULE 11(c)(1): The court may impose appropriate sanctions. Absent exceptional circumstances,
a law firm must be held jointly responsible for a violation committed by its partner, associate, or
employee.
b. RULE 11(c)(2): “Safe-Harbor” provision for attorney-initiated sanctions.
Must be served separately from other motions, but not filed with the court.
Opposing side can correct the problem within 21 days.
Even if corrected, court may award reasonable expenses and fees incurred for the motion.
c. RULE 11(c)(4): Sanctions must be limited to what suffices to deter repetition of the conduct or
comparable conduct. The sanction may include non-monetary punishments.
d. RULE 11(c)(5): Rule 11 does NOT apply to disclosures and discovery requests, responses,
objections and motions under Rules 26 and 37.
e. Sanctions are appropriate if attorneys make no inquiry into fact or law, or bring claims that are
completely unwarranted. An attorney’s lack of training or inexperience will not suffice as an
excuse to prevent sanctioning. An attorney must make an inquiry into the facts, meaning
information and belief absent evidence of fact-investigation by the attorney will not suffice.
Inquiry into the law refers to Rule 11(b)(2). (Zuk).
f. Courts will consider attorney’s history of conduct, other party’s need for compensation, how
willful the acts were, and the attorney’s ability to pay (Zuk).
 g. 28 USC § 1927: Any attorney or other person admitted to conduct cases in any court of the U.S.
or any Territory thereof who so multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally the excess costs, expenses, and
attorney’s fees reasonably incurred because of such conduct.

Defenses & Objections: FRCP 12: THIS RULE IS HUGE / USE YOUR RULEBOOK ON EXAM!
(YOU HAVE QUICK AND DIRTY METHOD ON OUTLINE)
A. TIME TO ANSWER: FRCP 12(a):
FRCP 12(a)(1)(A)(i)-(ii) “Time to Serve a Responsive Pleading” D must file an answer within 21
days after being served with the summons and complaint; or if it has timely waived service, within
60 days after the request for a waiver was sent.
FRCP 12(a)(1)(B): Same procedure for a counterclaim or a crossclaim
B. DEFENSES ASSERTED BY MOTION: FRCP 12(b): Every defense, in law or fact, to a claim for
relief in any pleading must be asserted in the responsive pleading if one is required. But a party may
assert the following defenses by motion:
(1) Lack of SMJ;
(2) Lack of PJ;
(3) Improper venue;
(4) Insufficient process;
(5) Insufficient service of process;
(6) Failures to state a claim upon which relief can be granted;
(7) Failure to join a party (who is indispensable) under Rule 19.
C. MOTION FOR JUDGEMENT. FRCP 12(c) After the pleadings are closed—but early enough not to
delay trial—a party may move for judgment on the pleadings.
D. MORE DEFINITE STATEMENT NEEDED: FRCP 12(e) A party may move for a more definite
statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous
that the party cannot reasonably prepare an answer.
E. SCANDALOUS OR IMPERTINENT MATERIAL: FRCP 12(f) Court may strike from a pleading
any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. This may be
done by motion from a party or the court can do it on its own.
F. GROUPING THESE MOTIONS IS MANDATORY: FRCP 12(g) “Joining Motions” If you file a
Rule 12 motion, file all of your “then available” Rule 12 motions at the same time. You must group
motions unless there’s an exception, like defenses aren’t available
(1) A motion under this rule may be joined with any other motion allowed by this rule.
(2) Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not
make another motion under this rule raising a defense or objection that was available to the party but
omitted from its earlier motion.
G. IF YOU DON’T JOIN THEM, YOU LOSE THEM FRCP 12(h)(1): If you don’t join all of your
“then available” Rule 12 motions, then you waive them. A party waives any defense listed under Rule
12(b)(2)-(5) (Lack of PJX, improper venue, insufficiency of process, or Service of Process) by: (A)
omitting it from a motion in the circumstances described in 12(g)(2); or (B) failing to either (i) make it
by motion under this rule, or (ii) include it in a responsive pleading or in an amendment allowed by Rule
15(a)(1) as a matter of course.
 H. WAIVING 12(b)(2)-(5): FRCP 12(h)(2): (2) Failure to state a claim upon which relief can be granted,
to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised: (A) In
pleading allowed or ordered under Rule 7(a); (B) By motion under Rule 12(c); or (C) At trial.
I. ASSERTING LACK OF SMJX: FRCP 12(h)(3): If the court determines at any time that it lacks SMJ,
the court must dismiss action. (Plead under 7(a), by motion under Rule 12, or at trial to dismiss for lack
of SMJX)

Default & Default Judgement: FRCP 55

(a) FRCP 55(a): “Entering a Default” When a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the
clerk must enter the party’s default judgment.
(b) FRCP 55(b): “Entering a Default Judgment” (1) By the Clerk. If the P’s claim is for a sum certain or
a sum that can be made certain by computation, the clerk—on the P’s request, with an affidavit
showing the amount due—must enter judgment for that amount and costs against a D who has been
defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the Court. In
all other cases, the party must apply to the court for a default judgment. (sum certain = non-negotiable
amount, like rent. In absence of sum certain, the sum must go to the court).
(c) FRCP 55(c): The court may set aside an entry of default for good cause, and it may set aside a final
default judgment under Rule 60(b).
a. Good Cause: when a party in default shows that (1) the plaintiff suffered no prejudice and (2)
when the party has a meritorious defense, and promptly moves to set aside the default judgement
before a judgement is entered, the court should grant relief to that party if it offers a credible
explanation for the delay that (3) does not exhibit disregard for the judicial proceedings (D did
not show culpable conduct – no intent to thwart judicial proceedings). (Shephard v. Darrah).

Counterclaims: FRCP 13(a)-(c)

A. COUNTERCLAIMS IN GENERAL: A counterclaim joins a claim against a party that is “across the
v.” A counterclaim is a type of claim governed by Rule 8. There are two types of counterclaims:
compulsory counterclaims and permissive counterclaims.
B. COMPULSORY COUNTERCLAIMS FRCP 13(a): A compulsory counterclaim arises out of the
same transaction or occurrence (FRCP 13(a)(1)(A), and must be included at the time of service if it
exists FRCP 13(a)(1). Here, once again, the policy is for judicial economy. There is an exception to a
compulsory counterclaim: if, when an action was commenced, the claim was the subject of another
pending action, then you need not state it FRCP (a)(2)(A). If the claim is compulsory, the court
automatically has subject matter jurisdiction (by supplemental jurisdiction).
a. SAME TRANSACTION or OCCURRENCE Whether a counterclaim is compulsory depends
on whether it arises out of the same transaction or occurrence that is the subject matter of the P’s
claim. If so, compulsory. If not, permissive. (Teamsters).
i. Are the issues of fact and law raised by the counterclaim largely the same? Would res
judicata (the thing has been judged) bar a subsequent suit on the D’s claim absent the
compulsory counterclaim rule? Will substantially the same evidence support of refute P’s
claim and counterclaim? Is there a logical relationship?
ii. Reference: 1367(a) District courts have original jurisdiction over claims that are so
related to claims in the action that they form party of the same case or controversy.
 C. PERMISSIVE COUNTERCLAIMS FRCP 13(b): A permissive counterclaim is a counterclaim that is
not compulsory, or is separate from and unconnected to the original claim. The court does not
automatically have subject matter jurisdiction over these claims via supplemental jurisdiction. To admit
a permissive counterclaim, SMJX must be established.
D. RELIEF: FRCP 13(c): states that the counter claim does not have to mirror the plaintiff’s claim, just
needs to be related.

Crossclaims: FRCP 13(g)

A. CROSSCLAIMS IN GENERAL: this is a claim against a party on the same side of the “v.” This is a
claim that is governed by Rule 8. Crossclaims must originate from a common nucleus of operative fact
or the same transaction or occurrence. The policy for this is that courts don’t want defendants suing each
other for something completely unrelated, for the sake of the plaintiff. All crossclaims are permissive,
and no party is ever required to file a crossclaim. Rule 1367’s restrictions apply here as well:
supplemental jurisdiction is required for the court’s jurisdiction.

Dismissal: FRCP 41
(a) VOLUNTARY
(1) By Plaintiff
(A) The P may dismiss an action without court order by filing:
(i) the notice of dismissal before the opposing party serves either an answer or a motion
for summary judgment; or
(ii) a stipulation of dismissal filed by all parties who have appeared. (if settlement, this is
required)
(B) Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But, if
the P previously dismissed any federal or state court action based on or including the
same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By Court Order Except as provided in Rule 41(a)(1), an action may be dismissed at the P’s request
only by court order, on terms that the court considers proper.

(b) INVOLUNTARY If the P fails to prosecute or to comply with these rules or a court order, a D may move
to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this
rule operates as an adjudication on the merits.

If a case is dismissed with prejudice, it cannot be brought back into court. If it is dismissed without prejudice, it
can be brought back into court.
VII: Initial Documents in a Law Suit in Federal Court

A. Pleading with Particularity

1. Applicable Law (Rule 9 shown below)
2. After Twombly and Iqbal, Rule 8 looks closer to Rule 9 now: it’s important to plead enough facts to
show the cause of action.

FRCP 9(b): Fraud or Mistake; Plead with Particularity

o In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or
mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

*Purpose: prevention of frivolous suits that could be embarrassing or damaging to a party’s reputation
*Compared with Rule 8(a)(2), Rule 9(b) has heightened particularity because of purpose

FRCP 9(g): Special Damages must be specifically stated

o If an item of special damage is claimed, it must be specifically stated.

*What special damages are varies from subject to subject

*Compared to Rule 8(a)(3), Rule 9(g) has heightened specificity

B. Pleading in the Alternative:

1. Applicable Law (Rule 8 shown below)

FRCP 8(a): General Rules of Pleading

8(a): Claim for relief must contain:
o (1) Statement of Court’s jurisdiction (why court has authority here)
o (2) Statement showing pleader is entitled to relief (needs facts for cause of action)
o (3) Demand for relief sought (what you want court to do)

FRCP 8(d)(2) and 8(d)(3): Pleading in the Alternative

8(d)(2): Allows pleading claims/defenses in the alternative
o A party may set out two or more statements of a claim or defense alternatively or hypothetically, either in
a single count or defense or in separate ones. If a party makes alternative statements, the pleading is
sufficient if any one of them is sufficient.

8(d)(3): Consistency doesn’t matter

o (3) A party may state as many separate claims or defenses as it has, regardless of consistency.

*Purpose: Plaintiffs don’t need multiple law suits in order to find all the facts of a case; judicial economy;
must have legal basis for adding claims; defenses can also be in the alternative
 C. Signing Pleadings and Sanctions
1. Applicable Law (Rule 11 below)
2. Attorneys must sign; attorneys must present things properly; attorneys can be sanctioned
3. Four Concerns of Rule 11:
a. Proper motivation for filing
b. Soundness of legal arguments
c. Basis for factual allegations
d. Basis for denials

FRCP 11(a), 11(b), 11(c)

FRCP 11(a): Everything filed must be signed by attorney, includes other information too
o “Every pleading, written motion, and other paper must be signed by at least one attorney of record in the
attorney's name—or by a party personally if the party is unrepresented. The paper must state the signer's
address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a
pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless
the omission is promptly corrected after being called to the attorney's or party's attention.”

FRCP 11(b): Representations to the Court

o By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting,
or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances:
o (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation;
o (2) the claims, defenses, and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new
law;
o (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or discovery; and
o (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified,
are reasonably based on belief or a lack of information.

FRCP 11(c): Sanctions (these aren’t quoted)

o (1) The court may impose appropriate sanctions. Absent exceptional circumstances, a law firm must
be held jointly responsible for a violation committed by its partner, associate, or employee.
o (2) “Safe-Harbor” provision for attorney-initiated sanctions.
 Must be served on the other side, but not filed with the court.
 Opposing side can correct the problem within 21 days.
 Even if corrected, court may award reasonable expenses and fees incurred for the motion.
o (4) Sanctions must be limited to what suffices to deter repetition of the conduct or comparable
conduct.
 May include non-monetary directives.
o (5) Rule 11 does not apply to disclosures and discovery requests, responses, objections and motions
under Rules 26 and 37.
28 USC § 1927:
o Any attorney or other person admitted to conduct cases in any court of the U.S. or any Territory thereof
who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court
to satisfy personally the excess costs, expenses, and attorney’s fees reasonably incurred because of such
conduct.

D. Cases:

1. McCormick v. Kopmann: A P may plead claims in the alternative (Rule 8(d)(2)(3)), but may not
recover upon both counts.
o Facts: P’s husband died when he was involved in a car collision with D1. D1 may have negligently
crossed the center line of the road, but P had been drinking at D2’s bar prior to the accident. P plead
that D1 was negligent in crossing the line, but also that D2 was responsible for her husband’s
negligence driving home while possibly intoxicated
o Holding/Reasoning: P must have a basis for pleading in the alternative: in this case, P plead on
information and belief because the key witness (her husband) was deceased. In such a case, pleading
in the alternative is often the only feasible way to proceed.

2. Zuk v. Eastern Pennsylvania Psychiatric Institute of the Medical College of Pennsylvania: Attorney
sanctions were within the sound discretion of the court because the P made no inquiry into fact
nor law.
o Facts: Zuk was a faculty member at EPPI who sued the institution for copyright infringement
through his attorney, Lipman. Court dismissed the action, but D subjected Zuk and Lipman to
liability for sanctions any attorney’s fees. Zuk settled, claim against Lipman remains.]
o Holding/Reasoning:
 Lipman was not acting in bad faith: he was not behaving maliciously to increase the costs
(as described in 1927). Court then turns to application of Rule 11. Lipman did not make
an inquiry into the facts: he plead information and belief with no evidence of fact
investigation, this will not suffice. Lipman also did not make an inquiry into the law: his
arguments were not warranted by existing law and he made no effort to change existing
law.
 § 1927: Any attorney or other person admitted to conduct cases in any court of the U.S.
or any Territory thereof who so multiplies the proceedings in any case unreasonably
and vexatiously may be required by the court to satisfy personally the excess costs,
expenses, and attorney’s fees reasonably incurred because of such conduct.
 Inquiry into the Facts: Information and belief with no evidence of fact-investigation
will not suffice.
 Inquiry into the Law: Rule 11(b)(2)
 Policy:
 Sanctions must be limited to what suffices to deter repetition of the conduct or
comparable conduct. (Rule 11(c)(4))
 Sanctions may be monetary, so long as this is coupled with a “reasonableness”
analysis (i.e. consider mitigating factors, ability to pay, etc.).
  Sanctions may also be other disciplinary actions (i.e. continuing education)
E. Answers and Motions
1. Rule 4 will not be on the exam
2. What are your choices if you get sued?
a. You can ignore it
b. You can answer it
c. You can settle it
d. You can move to dismiss
e. (list not exhaustive)

FRCP 4: Summons (NOT SUPPOSED TO BE ON EXAM)

o (d) “Waiving Service” (Important to check for the local rule.)
o (5) A D who waives service of a summons does not waive any objection to the venue or PJ.
o (d) “Service on Individuals” (May be served by any of the following)
o Serve personally.
o Leave copy at the individual’s dwelling or usual place of abode with someone of suitable age and
discretion who resides there.
o Leave with an agent authorized to accept process.
o Follow state law in the state where the district court is located or the state where service is made.

FRCP 8(b): Defenses; Admissions and Denials

(1) In responding to a pleading, a party must:
(A) State in short and plain terms its defenses to each claim asserted against it; and
(B) Admit or deny the allegations asserted against it by an opposing party.
(2) Denial: A denial must fairly* respond to the substance of the allegation.
(4) A party that intends in good faith to deny only part of an allegation must admit the part that is true and
deny the rest.
(5) Lacking Information: A party that lacks knowledge or information sufficient to form a belief about the
truth of an allegation must so state, and the statement has the effect of denial.**
(6) Failing to Deny: An allegation—other than one relating to the amount of damages—is admitted if a
responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an
allegation is considered denied or avoided.
(c) “Affirmative Defenses” In responding to a pleading, a party must affirmatively state any avoidance or
affirmative defense, including… (list pp. 31-32 of FRCP)***
(d) (3) A party may state inconsistent defenses. ****

*Fairly, not superficially

**If allegation is not denied, even for lack of information, usually a denial, but this could be construed as an
admission (called a denial with exceptions)
***You admit that event occurred, but deny fault for it. Defendant has burden of proving affirmative defense;
P has burden of proving the claim. Affirmative defenses are listed in 8(c), but not exhaustive list.
****Parties can state separate claims or defenses.

FRCP 7(a): What is considered a pleading?

F. Cases:

1. Crompton v. Knowles (Pt. 1): Pleading “lack of knowledge” may be taken as admission when the
matter is one as to which the D has knowledge or information (if it is “peculiarly within the
control and knowledge” of the D).
o Facts: In response to complaint, D claims “lack of information,” which is construed as a denial. P
proceeds on a statement that D is responsible for the manufacture of the machine at hand. D later
finds a K that releases it from liability. D wants to amend its response to include this.
o Holding/Reasoning: The court does not allow the D to amend its response because the information
the D seeks to include was “peculiarly within the control and knowledge” of the D. Though D has
no liability under the K, the court allows the P’s claim to proceed because the K was under the D’s
control. The D has a duty to respond to the substance of the allegations. D bears the burden of
proving the denial through the discovery process.

G. Rule 12: HUGE; GO THROUGH EVERY PIECE OF LANGUAGE THROUGH EXAM

1. Parts of applicable rule are on the next page (use rule book during exam; go through thoroughly)
2. Rule 12(a):
o You have 21 days to answer a motion UNLESS you waive; if waived, then you have 60 days
after the request for waiver was sent. If you timely waive, you have more time. (Rule 12(a)
(1)(A)).
o Same for counter claims and cross claims. (Rule 12(a)(1)(B)).
3. Rule 12(b):
o Lists defenses that may be asserted by motion
o Frequently used by defendants with regard to substantive defenses (lack of PJX, failure to
state a claim, etc.)
4. Rule 12(e):
o Party may move for a more definite statement of pleading if a responsive pleading is allowed
but it’s too vague or ambiguous to prepare an answer
5. Rule 12(f):
o Court can strike redundant, scandalous or impertinent material
o Policy: no need to hurt defendant’s reputation unnecessarily
6. Rule 12(g):
o You MUST group Rule 12 motions, UNLESS those defenses were not made available to you
at the time of the motion.
o You cannot make more than one Rule 12 motion unless there’s an exception (like it wasn’t
available to you at original motion)
7. Rule 12(h):
o A party waives any defense from Rule 12(b)(2) through Rule 12(b)(5) if the party (1) omits
the defense from the motion; or (2) include it in a responsive pleading or amendment as
permitted by Rule 15. (this includes lack of PJX, improper venue, insufficient process, and
insufficient service of process).
o You can assert lack of SMJX by (1) pleading under Rule 7(a); (2) motion under Rule 12; or
(3) at trial. SMJX cannot be waived.
FRCP 12: HUGE, GO THROUGH EVERY PIECE OF IT FOR THE EXAM
(a) “Time to Serve a Responsive Pleading” D must file an answer within 21 days.
EXCEPTION: If D waiver, within 60 days after the request for waiver was sent.
Policy: Increase settlement by giving parties more time to talk about and resolve issues.
12(a)(1)(B): SAME PROCEDURE FOR A CROSS OR COUNTERCLAIM.
(b) Every defense, in law or fact, to a claim for relief in any pleading must be asserted in the responsive
pleading if one is required. But a party may assert the following defenses by motion:
(1) Lack of SMJ;
(2) Lack of PJ;
(3) Improper venue;
(4) Insufficient process;
(5) Insufficient service of process
(6) Failures to state a claim upon which relief can be granted.
 Claim must be plead with facts that support the legal conclusion.
(7) Failure to join a party under Rule 19.
(e) A party may move for a more definite statement of a pleading to which a responsive pleading is allowed
but which is so vague or ambiguous that the party cannot reasonably prepare an answer.
(f) Court may strike from a pleading any insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.
 I.e. Boss fired me. Boss was having an affair. (Not related, and can hurt reputation)
(g) “Joining Motions” If you file a Rule 12 motion, file all of your “then available” Rule 12 motions at the
same time. You must group motions unless there’s an exception, like defenses aren’t available
(1) A motion under this rule may be joined with any other motion allowed by this rule.
(2) Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not
make another motion under this rule raising a defense or objection that was available to the party
but omitted from its earlier motion.
(h) “Waiving and Preserving Certain Defenses” If you don’t join all of your “then available” Rule 12 motions,
then you waive them.
(1) A party waives any defense listed under Rule 12(b)(2)-(5) by:
(A) Omitting it from a motion in the circumstances described in 12(g)(2); or
(B) Failing to either:
(i) Make it by motion under this rule; or
(ii) Include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1)
as a matter of course.
 Waives: Lack of PJ, Improper Venue, Insufficiency of Process, Service of Process
(2) Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or
to state a legal defense to a claim may be raised:
(A) In pleading allowed or ordered under Rule 7(a);
(B) By motion under Rule 12(c); or
(C) At trial.
(3) If the court determines at any time that it lacks SMJ, the court must dismiss action. (Plead under
7(a), by motion under Rule 12, or at trial to dismiss for lack of SMJX)
 H. Rule 55:
1. Applicable Law:
FRCP 55: Default; Default Judgement
(a) “Entering a Default” When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk
must enter the party’s default judgment.

(b) “Entering a Default Judgment”

(1) By the Clerk. If the P’s claim is for a sum certain or a sum that can be made certain by
computation, the clerk—on the P’s request, with an affidavit showing the amount due—must
enter judgment for that amount and costs against a D who has been defaulted for not appearing and
who is neither a minor nor an incompetent person.
o I.e. “Sum Certain” = non-negotiable amount, like rent, contribution to worker’s comp.
(NOT damages resulting from car accident—these are arguable).
(2) By the Court. In all other cases, the party must apply to the court for a default judgment.
o Without a sum certain, the sum must go to the court. (Court may §
Conduct an accounting; Determine the amount of damages, Establish the truth of any
allegation by evidence; or Investigate any other matter)

(c) The court may set aside an entry of default for good cause, and it may set aside a final default
judgment under Rule 60(b).

I. Cases:

1. Shephard v. Darrah: When a party in default (1) shows P suffered no prejudice and (2) has a
meritorious defense, and promptly moves to set aside the default before a judgment is entered, the
court should grant relief to that party if it offers a credible explanation for the delay that does not
exhibit disregard for the judicial proceedings.
o Facts: D’s Counsel’s secretary obtained an extension for filing an answer to the complaint. D’s
counsel understood this to mean the normal 30-day period plus 45 days. P’s counsel understood this
to mean a 45-day extension from the date. After 45 days had passed, P’s counsel request default
judgment.
o Holding/Reasoning: Lawyer was not culpable here; just negligent.
o List of factors court uses to frame the decision:
 Whether the plaintiff will be prejudiced
 Will conduct of defendant hurt plaintiff’s case?
 Court doesn’t sympathize if defendant chose a bad lawyer
 Whether defendant has meritorious defense (here, vacation was meritorious)
 Whether culpable (guilty) conduct of the defendant led to the default
 Was there intent to thwart the judicial proceedings?
 Was there intentional disregard?
o Policy: Deciding cases on the merit outweighs the inconvenience of a relatively short delay in the
answering. Want cases to be decided on merits, not technicalities. RULE 55 /=/ PUNISHMENT.
 o **Must file affirmative defense with answer.
J. Rule 13: Counterclaims: Join a claim against a party across the “v”
1. Applicable Law (shown below)
2. A counterclaim is a type of claim governed by Rule 8
3. Two types of counterclaims:
a. Compulsory – arising out of the same transaction or occurrence; must be included at the
time of service if one exists
i. Policy: judicial economy
ii. If you have a compulsory counter claim, you must state it, or you waive it
iii. If counterclaim is not ripe, it is not compulsory
iv. Exception to compulsory counterclaim: If, when action was commenced, claim
was the subject of another pending action, then you need not state it.
v. If compulsory, court automatically has SMJX (by supplemental jurisdiction,
1367). Must prove SMJX if counterclaim is permissive.
b. Permissive – any claim not compulsory
i. Court does not have subject matter jurisdiction over these claims automatically, it
must be established.
4. Part (c) of the Rule 13 states that the counter claim does not have to mirror the plaintiff’s claim, just
needs to be related.
5. Determining “same transaction or occurrence”
a. Are the issues of fact and law raised by the counterclaim largely the same?
b. Would res judicata bar a subsequent suit on the D’s claim absent the compulsory
counterclaim rule?
c. Will substantially the same evidence support or refute P’s claim and counterclaim?
d. Is there a logical relationship?

FRCP 13: Counterclaims: Join a claim against a party across the “v”
o Governs claims of D against P (must be across the “v”)
o Compulsory: Arises out of the same claim
o Permissive: Separate from and unconnected to the claim (requires own basis for jurisdiction)
 (a) “Compulsory Counterclaim”
 (1) A pleading must state as a counterclaim (or else waived) any claim that – at the time
of its service – the pleader has against an opposing party if the claim:
 (A) Arises out of the same transaction or occurrence that is the subject of
the matter of the opposing party’s claim; and
 (B) Does not require adding another party over whom the court cannot
acquire jurisdiction
 (2) (EXCEPTION) A pleader need not state the claim if
 (A) when the action was commenced, the claim was the subject of
another pending action.
 (b) “Permissive Counterclaim” A pleading may state as a counterclaim against an opposing
party any claim that is not compulsory.
 (c) “Relief” A counterclaim need not diminish or defeat the recovery sought by the opposing
party. It may request relief that exceeds the amount or differs in kind from the relief sought by
the opposing party. (Relief in counterclaim is independent from relief sought in original claim).
 K. Cases:

1. Wigglesworth v. Teamsters: Whether a counterclaim is compulsory depends on whether it arises

out of the same transaction or occurrence that is the subject matter of the P’s claim. (If it does
arise out of the same transaction or occurrence, it is compulsory. If not, it is permissive.)
o Facts: P filed suit against D, alleging D violated P’s rights at a union meeting. D filed a cross
complaint against P, alleging libel and slander at a press conference.
o Holding/Reasoning: Union Meetings /=/ Press Conference. D’s counterclaim is ancillary to the claim
asserted in the complaint and has no independent basis of federal jurisdiction. D’s counterclaim did
not arise out of the same transaction or occurrence as P’s claim. Therefore, D’s counterclaim is
permissive—not compulsory—so the court does not have jurisdiction over it (no SMJ).
 Determining “same transaction or occurrence”
 Are the issues of fact and law raised by the counterclaim largely the same?
 Would res judicata bar a subsequent suit on the D’s claim absent the compulsory
counterclaim rule?
 Will substantially the same evidence support or refute P’s claim and
counterclaim?
 Is there a logical relationship?
 28 USC § 1367(a): Supplemental jurisdiction: District courts have original jurisdiction
over claims that are so related to claims in the action that they form party of the same
case or controversy.

L. Rule 13: Crossclaims: Claim against a party on the same side of the “v”
1. It is a claim governed by Rule 8
2. MUST come out of the common nucleus of operative fact (same transaction or occurrence)
a. Policy: you don’t want defendants suing each other for something completely unrelated, for
the sake of the plaintiff
3. Party sues another party on the same side of the v.
4. All crossclaims are permissive.
5. You are never forced to file a crossclaim
6. 28 USC § 1367 applies here as well: supplemental jurisdiction required for court’s jurisdiction.

FRCP 13: Crossclaims: Join a claim against a party on the same side of the “v”
o All crossclaims are permissive (“may”).
o Must relate to the claim. (common nucleus of operative fact)
o From one party to another (same side of the “v”).
 (g) A pleading may state as a crossclaim any claim by one party against a co-party if the
claim arises out of the transaction or occurrence that is the subject matter of the
original action or of a counterclaim, or if the claim relates to any property that is the
subject matter of the original action. The crossclaim may include a claim that the co-party
is or may be liable to the cross claimant for all or part of a claim asserted in the action
against the cross claimant.
 M. Rule 41: Dismissal
1. Applicable law below (rule 41).
2. Plaintiff can voluntarily dismiss the motion without a court order by filing:
a. notice of dismissal before the opposing party services either:
i. an answer or a motion for summary judgement OR
ii. a stipulation of dismissal filed by all parties who have appeared

3. Unless the notice or stipulation states otherwise, the dismissal is without prejudice (if a case is
dismissed with prejudice, it cannot be brought back into court. If it is dismissed without prejudice, it can
be brought back into court.)
a. HOWEVER, if the plaintiff previously dismissed any federal or state court action based on, or
including, the same claim, a notice of dismissal operates as an adjudication on the merits.

4. Dismissal by court order: an action may be dismissed at the P’s request only by court order, on terms
that the court considers proper (except for the provisions in Rule 41(a)(1)).

5. Dismissal by Defendant: “Involuntary dismissal”

a. If plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.
b. Unless the dismissal order otherwise states, a dismissal under this rule operates as an
adjudication on the merits (with prejudice).

FRCP 41: DISMISSAL OF ACTIONS

(a) “Voluntary Dismissal”
(1) BY PLAINTIFF
(A) The P may dismiss an action without court order by filing:
(i) the notice of dismissal before the opposing party serves either an answer or a
motion for summary judgment; or
(ii) a stipulation of dismissal filed by all parties who have appeared.
(B) Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But,
if the P previously dismissed any federal or state court action based on or including the
same claim, a notice of dismissal operates as an adjudication on the merits.
(2) Except as provided in Rule 41(a)(1), an action may be dismissed at the P’s request only by
court order, on terms that the court considers proper.

(b) “Involuntary Dismissal”

o If the P fails to prosecute or to comply with these rules or a court order, a D may move to dismiss the
action or any claim against it.
o Unless the dismissal order states otherwise, a dismissal under this rule operates as an adjudication on
the merits (with prejudice).