I.

What is jurisdiction? a. Jurisdiction: authority of the court to decide a case i. Federal courts are courts of limited jurisdiction. 1. Article III of the US Constitution a. 1: Judicial power of US is vested in one Supreme Court and gives Congress power to establish and ordain lower courts. i. District, Circuit, Trial etc., courts need to be given authority by Congress. b. 2: Federal judicial authority extends to all cases arising under the Constitution, Treaties, and controversies between two or more states.

II.

Subject matter jurisdiction: The courts power to hear a case because of the nature of the dispute; cannot be waived. a. Subject matter jurisdiction in the state courts is determined by the state constitution, state statutes, and judicial decisions. b. In the federal courts subject matter jurisdiction via Article III of the US Constitution, federal statutes, and judicial decisions. i. Original Jurisdiction: A courts power to hear and decide a matter before any other court can review the matter [Blacks Law Dictionary] 1. Federal question: The federal power over claims arising under the US Constitution, an act of Congress or a Treaty. [Blacks Law Dictionary] a. Article III 2 of the US Constitution: Jurisdiction under the arising-under statute must be based on the plaintiffs claim. b. 28 USC 1331: District courts have original jurisdiction of all civil actions arising under the Constitution, law, or treaties of the US.

c. To satisfy federal question: i. Well pleaded complaint: Jurisdiction under 1331 must be determined from what necessarily appears in the plaintiffs statement of his claim. [Mottley] ii. A suit arises under the law that creates the cause of action. [Holmes creation test] iii. In order to arise under the Constitution there must be a 1) remedy under federal law or 2) require construction of federal law or 3) question of federal policy. [Harms] ii. Diversity Jurisdiction: 28 USC 1332: District courts have original jurisdiction of all civil actions where the matter in controversy exceeds 75K and is betweencitizens of different states, citizen of a state and a foreign state, the combo of the aforementioned 1. Amount has to be more than 75K 2. Parties have to be different across the line a. Domiciles, where person physically is and intends to remain i. Individual-can be changed by physically moving and intending to remain [Mas] ii. Corporation-place of corporation and the principal place of business, these are circuit specific. Can have only one principle place of business but can have more than one domicile. Nerve Center: Central authority over corporate making decisions Muscle Center/Operations: Corporations production and/or service take place EXCEPT SALES B/C THEY CAN BE HELD ANYWHERE. Performed in the 9th circuit. Hybrid: Total Activity test 3. Jurisdictional Amount in Controversy: monetary sum for which the plaintiff files suit against defendant. 2

a. The plaintiff must in good faith have this sum outlined in their suit in order to present their case the federal court to satisfy the federal requirement for diversity jurisdiction. 4. Dismissal for lack of jurisdiction is based on the sum presented by the plaintiff and it must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. [Whitchurch] III. Supplemental Jurisdiction-1367: Over matters where original jurisdiction is present, district courts have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article II of the US Constitution. I.e.; counter claims, additional plaintiff claims. a. Original Jurisdiction i. ii. iii. First, the court must determine whether there is constitutional power under Article III 2. Second, the court must determine whether there is a statutory grant of jurisdiction over the related claim. Third, the court must decide, based on various discretionary factors, whether to do so.

b. Common Nucleus of operative facts: As long as there is original jurisdiction submission under one claim then you can attach supplemental claims. c. If there is a state and a federal claim and both arise form the same operative nucleus of facts, all claims can be heard by the federal court. [Gibbs]

d. 1367 i.

Must: in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all claims that are so related that they form part of the same case or controversy under Article III of the US Constitution May: The district courts may decline to exercise supplemental jurisdiction under subsection if: 1. The claim raise a novel or complex issue of state law; 2. The claim substantially predominates over the claim; 3. The district court has dismissed all claims over which it has original jurisdiction. 4. Exceptional circumstances

ii.

iii.

Must not: In any civil action of which the district courts have original jurisdiction founded solely on 1332 of this title, the District Court shall not have supplemental jurisdictionwhen exercising jurisdiction would be inconsistent with the jurisdictional requirements of 1332. If it destroys you dont have jurisdiction.

e. When the well pleaded complaint contains at least one claim that satisfies the amount-in-controversy requirement, and there are no other relevant jurisdictional defects, the district court, beyond all question, has original jurisdiction over that claim. [Exxon] IV. Aggregation: Parties or the claims can be lumped together. a. A single plaintiff may aggregate related claims to satisfy the amount in controversy against a single defendant b. More than one plaintiff may aggregate claims only if they share a common undivided interest i. Joint ownership ii. Husband/wife iii. Employer/employee iv. Parent/child c. Usually must be some sort of legal relationship/connection d. Must be common undivided interest e. Generally claim against multiple defendants may not be aggregated i. Violation of due process. 4

V.

Removal Jurisdiction: Defendant is given a limited right to transfer a case from state to federal court. Removal protects a nonresident defendant against any local bias that might be encountered in the state court because of the defendant being a foreigner. a. 28 USC 1441: Notice of removal must be filed within 30 days from the time defendant is served with process. Plaintiff has 30 days from to remand case to state court. i. (a) Authorizes removal of state court actions of which the district courts of the US have original jurisdiction. If the plaintiff could not have chosen to bring the action in federal court initially, the defendant cannot remove it (b) Defendant cannot remove case to Supreme Court of his home state. (c) A separate and independent claim or cause of action w/in the jurisdiction conferred by 1331 is joined with one or more otherwise non-removable claims or causes of actionentire case may be removed and district court may determine all issuesor may remand all matters in which the state law predominates. (d) Any civil action brought in a state court against a foreign state, may be removed by the foreign state (ref 1332), and be tried by the court without a jury. (e) Federal court is not precluded from hearing the case simply because the state court lacked jurisdiction

ii.

iii.

iv.

v.

b. Removal is upward by defendant, lower to federal

VI.

Personal Jurisdiction: The power of a court to enter a judgment against a specific defendant. A court can only assert personal jurisdiction if its power is authorized by statute and does not exceed the limitations of the Due Process Clause (14) of the US Constitution. a. Personal jurisdiction is all about what is fair. b. Personal jurisdiction is state to state, based on territory. c. Amendment 14: State shall not deprive any citizen of the United States life, liberty or property without due process of law. d. Personal jurisdiction can be waived. If there is a motion to dismiss due to lack of personal jurisdiction, plaintiff has burden of proof. e. Notice: is information, advice or written warning in more or less formal shape intended to apprise a person of some proceeding in which his interests are involved. f. Service: the delivery of an authorized paper by an authorized person to a person who is notified of an action which the person is commanded to take or not take. g. Process can be 3 different things 1) any means used by a court to exercise jurisdiction over a person or prop 2) the means whereby the court compels an appearance of a defendant before it or compliance with the courts demands or 3) a summons plus a complaint.(Must have both) a) FRCP: as long as in federal system. 1) Notes about FRCP 4 (FRCP 4M noted in another section) o Basics about Rule 4, service is accomplished by someone who is not the plaintiff (cannot be plaintiff) of the summons and the complaint, the process server must be over the age of 18, the process servee need not be the defendant but must be someone who is in close proximity of defendant and must be of reasonable, suitable, age and discretion. o Rule 4(e)(2): Allows alternative to personal delivery, by placing summons at someones home or usual place of abode.

o Rule 4(e)(2): Delivery to an Agent Authorized by Appointment: Must be evidence that the defendant intended to confer authority to receive summons upon the agent. o Federal Rule 4(h): Service on artificial Entities: Corporations, Partnerships, and Unincorporated Associates: Authorize service on the above agencies that are subject to suit under the same name. Most frequently invoked portion of the rule is the part permitting service by delivery of process to an officer, a managing agent, or a general agent. 2) Form. Summons shall be signed by the clerk, bear the seal of the court, identify the court and the parties, be directed to the defendant, and state the name and address of the plaintiffs attorney. It will also state the time defendant should appear and advise that failure to do so will result in judgment by default against the defendant. 3) Issuance. Upon or after filing complaint, the plaintiff may present a summons to the clerk for signature and seal. A summons shall be issued for each defendant served. i. Plaintiff has 120 days from filing of complaint, to serve it. 4) A summons shall be served together with a copy of the complaint. i. Service may be delivered by any person who is not a party and who is at least 18 years of age. At the request of the plaintiff, court may appoint an officer to deliver summons.

5) Waiver of service; Duty to save costs of service; request to waive (waiver of personal service, not waiver of service) 1) Plaintiff must notify defendant of the commencement of the action and request defendant waive service of the summons. The notice and the request. A) be in writing and addressed directly to the defendant B) by reliable means C) accompanied by a copy of the complaint and identify the court in which it has been filed D) will inform defendant of the consequences of compliance and of a failure to comply with the request E) date on which the request was sent F) allow defendant a reasonable time to return the waiver, at least 30 days from the date on which the request was sent or 60 days from that date if the defendant is addressed outside of the US G) extra copy of the notice and request and prepaid means of compliance in writing 2) If a defendant responds to waiver in timely matter, they are not required to respond to complaint until 60 days after the date of which the request for waiver of service was sent, or 90 days after that date if the defendant was addressed outside of the US. 3) When plaintiff files a waiver of service with the court the action will proceed as if a summons and a complaint had been served a the time of the filing of the waiver, and no proof of service shall be required. IF THEY DONT? 4) Costs of service will be imposed upon defendant for failure to comply with a request to waive service b) Service Upon Individuals Within a Judicial District of the US. 8

VII.

Types of personal jurisdiction a. In personam: Court exercises its power to render a judgment for or against a person by virtue of his presence within the states territory or his citizenship there. i. general: defendant can be haled into court for any reason whatsoever because the defendants contacts with the forum are so systematic and continuous that it would not offend the notions of due process to do so specific: cause of action must arise in the jurisdiction, must satisfy states long arm statute and not offend due process In rem: Court exercises its power to determine the status of property located within its territory. 1. Concerns the rights and liabilities of property without regard to an individual. iv. Quasi in rem: Court renders a judgment for or against the rights and liabilities of an individual but recovery is limited to the value of property that is within the jurisdiction and thus subject to the courts authority. 1. Due process qualifications must be determined for quasi in rem. [Shaeffer] 2. Types of Quasi In Rem: a. Rights and liabilities of the defendant concerning the property. b. Property is unrelated to the cause of action but plaintiff is seeking to attach it to the lawsuit so that it can be used to satisfy a judgment against a defendant. ((Just trying to get defendant in the forum)) After Schaeffer, must est. minimum contacts type 2 because process must still be fair to satisfy due process.

ii. iii.

3. Relevant court rulings

Keywords re: cases not served with process papers and lived out of state struck on state highway

Case Pennoyer

For X

Against

Rule Presence: A defendant must have some presence in the forum state for a court to exercise personal jurisdiction over the defendant. Consent to jurisdiction. A defendant may consent to a court's personal jurisdiction through the defendant's actions. A defendant must have minimum contacts with the forum state in order for a court to exercise personal jurisdiction over it. Defendant has purposefully availed interest of the benefits and protections of the forum state.

Hess

International Shoe

Hanson

Gray McGee World Wide Volkswagen X

X X

Minimum contacts w/in due process b/c action arose in forum state minimum contacts; upheld jurisdiction over claims arising out of a single contract solicited in the state Defendant could reasonably anticipate being haled into the court in forum state.

supplied enough business selling shoes within forum state to have systematic and continuous contacts attempting to try case in their state of domicile even though the only contact had with state is with the decedent injured by faulty valve manufactured by , life ins co, mailed premiums to (conducted business), contract delivered in forum state. regional distributor of cars did not have contacts, ties or relations w/in forum state signed contract for franchise to be ruled by FL state and he purposely availed himself to the FL franchise manufacturer of valves, business in Japan, international company columbian company, survivors and reps for the dead , TX, insufficient contacts.

Burger King Corp

Does not offend the notions of fair play and substantial justice. Does not offend the notions of fair play and substantial justice. Contacts within forum state must be systematic and continuous.

Asahi Helicopteros

X X

Long Arm Statute: long arm or single act statutes seek to provide personal jurisdiction over nonresidents who cannot be found and served in the forum.

10

VIII. Venue: Venue statutes guide the litigant to choose the appropriate forum. a. Opportunity to be heard: Due process entitles parties a right to be heard before being deprived of property and to be given notice within an adequate amount of time to respond so as to allow defendant to obtain counsel and prepare a defense. b. 28 USC 1404(a)-For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district where it might have been brought. i. Venue can be transferred via partys motion to transfer or a courts. Jurisdiction is limited via 1404, court may transfer only where the plaintiff would have been able to bring suit.

c. Federal Rule 12(a) and state statutes generally allow defendants twenty days or more after service in which to respond. i. Any person not a party to the claim and over 18 can perform service of process.

11

d. 28 USC 1391 (a-c): (a) A civil action where the jurisdiction is founded only by diversity jurisdiction many be brought only in 1. judicial district of the defendants if all defendants reside in the same state, 2. judicial district in which a substantial part of the events giving rise to the claim occurred or a substantial part of the property that is the subject of the action is situated, and; 3. judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. (subject to personal jurisdiction) (b) if subject matter jurisdiction is NOT diversity only may be brought only in; 1. judicial district of the defendants if all defendants reside in the same state, 2. judicial district in which a substantial part of the events giving rise to the claim occurred or a substantial part of the property that is the subject of the action is situated, and; 3. judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.(subject to personal jurisdiction) (c) A defendant corporation resides in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. e. 28 USC 1406 (a): Cure of waiver of defects: (a) If a case is filed in a district court and is the wrong venue district, the court may dismiss or transfer case to appropriate district or division in which it could have been sought in the interest of justice (b) Nothing shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue

12

IX.

Governing Law a. Eerie Doctrine: Apply state law where the cause of action arose in federal cases that are seen strictly for diversity. i. After Eerie

b. York Case: Suit brought forth as a question of procedure. Court ruled to apply state law because the application of the state law or federal law would vary the outcome of the case. i. After York: OUTCOME DETERMINITIVE TEST

13

c. Byrd case: Procedural issue pertaining whether to apply state law which does not call for trial or to apply federal law which does call for trial when facts are in dispute. i. After Byrd: BYRD BALANCING TEST

d. Hanna case: If the federal rule of civil procedure is right on point, then that is the rule we use. i. After Hanna:

14

e. 28 USC 1652: State Law Rules as Decision i. The laws of several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. 1. Several state = laws of only one state 2. Court of the US = federal courts 3. In cases where they apply = diversity cases f. 28 USC 2072: Rules of procedure and evidence; power to prescribe i. Supreme Court has the power to prescribe general rules of practice and procedure and rules of evidence for district courts and courts of appeals; Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of not further force or effect after such rules have taken effect; Such rules may define when a ruling of a district court is final for the purpose of appeal under section 1291 of this article.

ii.

iii.

15

X.

Pleadings a. Definition: Any document that sets forth a claim for relief or a defense for a claim for relief. b. Pleading must put the defendant on notice and describe what the plaintiff is going for (RULE 8) c. Failure to answer an allegation in a timely manner means that those allegations are admitted. (RULE 8) d. Types of Pleadings i. ii. iii. Complaint: first pleading. Response Sets forth Response Complaint Answer 3rd party complaint 3rd party answer Cross-claim Answer Counter claim* Reply to the counter claim *Counter claim is not a claim, it is a pleading.

e. Applicable rules i. FRCP 7 (a) Pleadings allowed, see above layout in italics, no other pleading is allowed except that a court can order a reply to an answer or a third party answer. (b) Motions are governed by this rule which states that applications to the court for an order shall be by motions which shall be in writing, shall state with particularity the grounds therefore, and shall set forth relief of order sought.

16

ii.

FRCP 8 (a) A pleading which sets forth a claim for relief shall contain: (1) a short and plain statement of the grounds upon which the courts jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it; (2) A short and plain statement of the claim showing that the pleader is entitled to relief, and (3) A demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded. (b) Defenses; Form of denials. A party shall state in short and plain terms of the partys defenses to each clam asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this as the effect of a denial. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. (c) General rules of pleading: Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.

iii.

FRCP 54C Default judgments must not be different in kind or exceed amount that is prayed for in the demand for judgment. If a demand for judgment or damages are unspecified then the finder of facts will determine award.

17

iv.

FRCP 9

(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting a fraud or mistake shall be stated with particularity (requires a little more than a short and plaint statement, tell why the lie arises to the level of fraud). Malice, intent, knowledge, and other condition of the mind of a person may be averred generally. (g) Special Damage. When items of special damage are claimed, they shall be specifically stated. [Ziervogel: if there are damages that are not easily foreseeable consequences then they must be stated with particularity] v. FRCP 64: A federal court may use the provisional remedies available to the courts of the state in which it is sitting to the extent that these state remedies are not inconsistent with any other federal rule or statute. 1. Provisional remedies are subject to the constraints of the Due Process Clause, which requires notice and an opportunity to be heard before the taking or the limiting use of the property. 2. Types of provisional remedies: a. Attachment: Plaintiff seizes or limits another partys use of property during trial to be assured of recovering some assets should a favorable judgment ultimately be entered. i. Attachment as a provisional remedy prevents defendant from selling or otherwise disposing of any real or personal property that has been taken into the custody of the attaching officer. ii. When the value of the property sought to be attached is significantly greater than defendants potential liability or when the property is party of an ongoing business, the remedy may be denied. iii. All nonexempt tangible and intangible property in which defendant has a recognizable interest is subject to attachment for purposes of securing the enforcement of the prospective judgment. 18

b. Garnishment: Plaintiff asks court to seize the property of a third party that is owed to or being held for the defendant. i. When property of or a debt owed to defendant is in the hands of a third person, that person (the garnishee) may be prohibited from selling, assigning, or interfering with any property in which defendant has an interest or from paying or discharging any debt except as directed by the sheriff or a court order. ii. The garnishee also may be ordered to turn the property or proceeds of the debt over to the court at the conclusion of the action for application to the final judgment.

19

c. Preliminary Injunction: Equitable remedy that allows the plaintiff to stop a defendant from on going or threatened action that is likely to cause irreparable injury. i. Federal rule 65, authorizes the issuance of a preliminary injunction by a federal court. ii. Federal rule 65C requires that before an injunction may issue, a bond must be posted under which the defendant may recover if a court later determines that he was wrongfully enjoined (to legally prohibit or restrain by injunction). iii. The courts use preliminary injunctions only on notice to the defendant and in the most necessary circumstances. iv. Typical justification is that without such relief, it may be difficult, and sometimes virtually impossible, for a court to unscramble the eggs if certain kinds of conduct continue during the pendency of the lawsuit. v. Generally, the moving party is required to show that none of the less drastic provisional remedies provides an adequate alternative so that irreparable injury will be suffered absent the ordering of relief. The following factors may be considered; 1. The movants likelihood of success on the merits; 2. The likelihood of irreparable harm if the injunction is not issued; 3. The relative hardships faced by the parties; 4. And any relevant public policy of public interest concerns

20

d. Temporary Restraining Order: Procedure that allows a plaintiff, typically ex parte (from one side only) and so without notice or hearing, to stop a defendant from engaging in ongoing or threatened action that is likely to cause irreparable injury. i. Rule 65 also authorizes the issuance of a temporary restraining order. ii. Issued ex parte. iii. This move is only appropriate when the threat of irreparable injury is immediate and the need to preserve the status quo is urgent. iv. These orders may be given without notice but courts are reluctant to do so and may submit to several tests before granting such a motion. Usually it is proceeded ex parte when there is no reasonable alternative. v. TROs present special problems in First Amendment cases when their issuance infringes on fundamental rights guaranteed by the Constitution. vi. TRO will generally remain effective only for a relatively brief period or until a hearing is held on plaintiffs request for a preliminary injunction. e. Receivership: A receiver is a court-appointed officer who administers property that is the current or likely subject of litigation; the receivers assignment is to manage and preserve the property in the same manner that the owner or possessor would be bound to do. f. Lis Pendens (Notice of Pendency): Lis Pendens is a procedure that allows a plaintiff to protect herself against the transfer of contested property, so that prospective purchasers are advised of the on going litigation. g. Civil Arrest: Provides for the imprisonment of a defendant who fails to satisfy an awarded judgment. 21

vi.

FRCP 12 (b) How Presented. Every defense to a claim for relief in any pleading shall be asserted in the responsive pleading if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (c) Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial; any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (d) Preliminary Hearings. The defenses specifically enumerated (1)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

22

(e) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. (f) Motion to Strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

23

vii.

FRCP 65 (a) Preliminary Injunction. (1) Notice. No preliminary injunction shall be issued without notice to the adverse party. (b) Temporary Restraining Order; Notice; Hearing; Duration. A temporary restraining order may be granted without notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.

viii.
RULE 64 12b1** 12b2 12b3 12b4

Key to motions.
MOTION Preliminary Injunction To dismiss To dismiss To dismiss To dismiss GROUNDS Preserve strategies No subject matter jurisdiction Lack of personal jurisdiction Improper Venue Insufficiency of process STANDARD Irreparable harm and success of case based on merits 1331/1332 Minimum contacts or personal jurisdiction 1391 Not having summons and complaint together or the documents themselves are not drafted correctly; FRCP Not served via FRCP 4 Rule 8A

12b5 12b6

Improper service Failure to state a claim on which relief can be granted* 12f To strike Insufficient defense, Complaint still exists just the immaterial, redundant or allegation that is stricken in not scandalous longer viable 12e More definite statement Complaint is so vague that Makes complainant make defendants cannot respond statement more definite *The plaintiff would be entitled to no relief under any state of fact which could be proved in support of that complaint. (Meaning when if statement is true, the defendant has not performed a violation illegally) **All motions except 12b1 are usually granted without prejudice, meaning plaintiff can revise pleading.

To dismiss To dismiss

24

ix.

FRCP 15 1. Purpose is to provide maximum opportunity for each claim to be decided on its merits rather on procedural technicalities and reflects the fact that the federal rules assign the pleadings the limited role of providing the parties with notice of the nature of the pleaders claim or defense and the transaction, event, or occurrence that has been called into question; they no longer carry the burden of fact revelation and issue formation, which now is discharged by the discovery process, or control the trial phase of the action. 2. During trial amendments may be made with leave of the court to conform to issues raised by unexpected evidence per Rule 15B. 3. Text of Rule 15: (a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. (b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would 25

prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. (c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. The delivery or mailing of process to the United States Attorney, or United States Attorney's designee, or the Attorney General of the United States, or an agency or officer who would have been a proper defendant if named, satisfies the requirement of subparagraphs (A) and (B) of this paragraph (3) with respect to the United States or any agency or officer thereof to be brought into the action as a defendant.

26

x.

FRCP 4M

(m) Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to subdivision (f) or (j)(1). xi. FRCP 11

(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. (b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,-(1) it is not being presented for any improper purpose; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to 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 reasonably based on a lack of information or belief. (c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an

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appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation. (1) How Initiated. (A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). (B) On Court's Initiative. Court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto. (2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a non-monetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation. (A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2). (B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned. (3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

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