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Civil Procedure II (Bockrath) Study GuideSpring 2007

Overview Sheets Topic Page NumberRule 8... 2Rule 9 .. 7Rule 11 8Rule 12 (b), (g), (h) . 12Rule 13 16Rule 14 20Rule 15 24Rule 18 28Rule 19 31Rule 20 35Rule 22 37Rule 24 38Rule 41 41Rule 55 45Rule 82 5028 U.S.C. 1335 ... 5128 U.S.C. 1367 ... 5228 U.S.C. 1391 ... 57

Practice problems from casebook ... 59Practice problems from class .. 74


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Rule 8 General Rules of Pleadings

(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim,cross-claim, or third-party claim, shall contain (1) a short and plain statement of the grounds upon whichthe courts jurisdiction depends, unless the court already has jurisdiction and the claim needs no new groundsof jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled torelief, and (3) a demand for judgment for the reliefthe pleader seeks. Relief in the alternative or of severaldifferent types may be demanded.

Rule 8(A) requires three items be in a pleading that sets for a claim for relief:o Short and plain statement of jurisdiction

This refers to subject matter jurisdiction The claimant only needs to prove that subject matter jurisdiction exists; the burden is on

the defending party to prove that any of the waivable defenses (personal jurisdiction,venue, process, service of process) are not proper

o Short and plain state of the claim showing the pleader is entitled to relief The claimant must shortly and plainly establish that (according to him/her) all elements

of the claim are met

Ex: I claim you committed negligence; I have to lay out (shortly and plainly)duty, breach, proximate cause, cause in fact, and damages

This must be read in pari materia of Rule 9, which establishes exceptions to Rule 8(A)(2)usually pointing to a particularity necessary for the pleading

This is the section from which a Rule 12(B)(6) defense will arise If the claimant does not establish all facts necessary for the claim, there can be a

failure to state a claim

If the claimant establishes extra facts that prove he/she cannot win, there can be afailure to state a claim

Procedural tactic: Rule 15 establishes that the receipt of a responsive pleading cuts offthe right to amend, as a matter of course (this means you must ask the judge if you wantto amend the pleading)

Theoretically this would mean if you were going to use Rule 12(B)(6) as yourdefense, you would want to raise it via pleading rather than motion, because amotion does not cut off the right to amend

In practice, most judges will allow a party to amend a pleading due to failure tostate a claim

o Demand for relief Regardless of what you ask for, you will get what you proved

In other words, I may seek $75,000 in damages (my demand for relief), but I mayprove I deserve $150,000 in damages; I will receive $150,000

The only time you receive only what you ask for is in a default judgment

This applies to all claims for relief, regardless if they fall in claims, counterclaims, cross-claims, etc.


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(b) Defenses; form of denials. A party shall state in short and plain terms the partys defenses to each claimasserted and shall admit or deny the averments upon which the adverse party relies. If a party is withoutknowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state andthis has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When apleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify somuch of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith tocontrovert all the averments of the preceding pleading, the pleader may make denials as specific denials ofdesignated averments or paragraphs, or may generally deny all averments except such designated averments or

paragraphs as the pleader expressly admits; but, when the pleader does so intend to controvert all its averments,including averments of the grounds upon which the courts jurisdiction depends, the pleader may do so bygeneral denial subject to the obligations set forth in Rule 11.

Rule 8(b), (c), and (d) provide the boundaries of the answer, regardless of if it includes a counterclaim ornot

Rule 8(b) specifically covers denialso Claimant alleges facts X, Y, and Z; defending party thinks fact X and Y are incorrect, so the

defending party would deny those factso If something is not denied (ex: Z above), then it is accepted as fact, so even if it did not happen

in reality, it did happen as a matter of law (see Rule 8(e))o Remember, according toMcCormick, a party may provide multiple defenses that are alternative

and/or hypothetical, provided those defenses are in compliance with Rule 11

To fairly deny means to squarely denyo Ex: If the claimant claims the defending party was in Chicago on the day of the accident, the

defending party should deny this by saying, I was not in Chicago on the day of the accident,instead of I was in Boston on the day of the accident; the latter is an argumentative denial, andcan be construed as an admission of the facts alleged by the claimant

o The flip side of the argumentative denial is the negative pregnant denial, which is too specific Ex: If the claimant claims the defending party was driving 70 mph and the defending

party denies this by saying, I was not driving 70 mph, some courts construe this tomean the defending party is admitting to driving 69 mph (or less) or 71 mph (or more)


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(c) Affirmative defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accordand 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 anavoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or acounterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been aproper designation.

The common theme for all affirmative defenses is they add new material to the trial that, if true, deflectthe consequences of the claimants claim without negating the existence of the claimants claim

o Note, the use of 8(c) by itself does not admit truth in the claimants claim; it merely deflects theconsequences without negating the existence of the claimants claim

The defending party must set forth any affirmative defenses to the claimants claim, otherwise thedefending party will not be allowed to submit evidence of the affirmative defense

This is a non-exclusive listo There is no downside to pleading something you are not sure if it is/isnt an affirmative defense;

put it in if you arent sure because there is a downside to not putting it in


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(d) Effect of failure to deny. Averments in a pleading to which a responsive pleading is required, other thanthose as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in apleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

Only those things denied will be litigated; failure to deny something admits that it is true (regardless ofif it really is)

If an averment is made in a pleading which does not permit a response, the averment will be taken asdenied


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(e) Pleading to be Concise and Direct; Consistency.

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading ormotions are required.

(2) A party may set forth two or more statements of a claim or defense alternately or hypothetically,either in one count or defense or in separate counts or defenses. When two or more statements would besufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative

statements. A party may also state as many separate claims or defense as the party has regardless ofconsistency and whether based on legal, equitable or maritime grounds. All statements shall be madesubject to the obligations set forth in Rule 11.

There is no prohibition under Rule 8(e) to pleading alternative and inconsistent theories and defenses (ashighlighted inMcCormick v. Kopmann), but all pleadings are subject to Rule 11 which requires allinformation in the pleading to be correct to the best of the claimants knowledge


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Rule 9 Pleading Special Matters

Rule 8(a)(2) establishes every pleading must include a short and plain statement of the claim showingthe pleader is entitled to relief

o This means if I want to claim negligence in Louisiana, I have to include in my short and plainstatement of the claim all elements of negligence (duty, breach,)

o I do not have to prove the elements, but merely lay out that they exist Ex: I was walking on the sidewalk when the s car came on to the sidewalk and struck

me, thus causing me to break my leg and hip.

Rule 9 points out when something other than a short and plain statement of the claim is requiredo All of the requirements are because if this item were brought up in court for the first time, it

would be a surprise to the

(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of aparty to sue or be sued in a representative capacity or the legal existence of an organized association ofpersons that is made a party, except to the extent required to show the jurisdiction of the court. When aparty desires to raise an issue as to the legal existence of any party or the capacity of any party to sue orbe sued or the authority of a party to sue or be sued in a representative capacity, the party desiring toraise the issue shall do so by specific negative averment, which shall include such supporting

particulars as are peculiarly within the pleaders knowledge.

You do not have to allege that you have capacity or that the person you are suing has capacity, but if youwant to allege that you (or the person you are suing) does not have capacity, then your claim mustinclude supporting particulars (i.e. more than the general requirements)

(b)Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstancesconstituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, andother condition of mind of a person may be averred generally.

If claiming fraud or mistake, the claim must be made with particularity; there is no general allegation offraud or mistake

Policy reasoning behind this: the allegation of fraud sticks like mud, so the burden is placed on theclaimant to spell out what the fraud was, so to help legitimize fraud claims

(g) Special Damage. When items of special damage are claimed, they shall be specifically stated. Special damages are generally things for which receipts can be produced and must be stated.

o Ex: I get hit my you while walking on the sidewalk. Pain and suffering are not special damages,they are expected, so they do not need to be specifically stated in the pleading (Rule 8(a)(3)); butmy medical bills are special damage maybe Ill say who cares about going to the doctor forthis little scratch? so if I want to get medical expenses as damages, I have to specifically statesuch


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Rule 11

(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney ofrecord in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by theparty. Each paper shall state the signers address and telephone number, if any. Except when otherwisespecifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. Anunsigned paper shall be stricken unless omission of the signature is corrected promptly after being called tothe attention of the attorney or party.

Rule 11(a) applies to all documents (pleadings, motions, and other papers) and establishes that all ofthese documents must be signed by an attorney of record

The penalty is the unsigned paper must be stricken unless its corrected


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(b) Representation to Court. By presenting to the court (whether by signing, filing, submitting, or lateradvocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that tothe best of the persons knowledge, information, and belief, formed after an inquiry reasonable under thecircumstances, -

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delayor needless increase in the cost of litigation;

(2) the claims, defense, and other legal contentions therein are warranted by existing law or bynonfrivolous argument for the extension, modification, or reversal of existing law or theestablishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically soidentified, are likely to have evidentiary support after a reasonable opportunity for furtherinvestigation 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.

Rule 11(b) applies to all documents (pleadings, motions, and other papers) and all representations to thecourt; however discovery is not covered by Rule 11 (see Rule 11(d))

Rule 11(b) establishes that all of the above documents and representations must be to the best of theattorneys knowledge must be:

o Not presented for an improper purposeo Warranted by existing law or a non-frivolous argument for the extension, modification, or

reversal of existing lawo Allegations have factual support or likely to have evidentiary support after

investigation/discovery

Note that evidentiary support includes testimony, so something false can have supporto Denials are warranted on the evidence

The attorneys knowledge is on the knowledge reasonable under the circumstances; this is a somewhattemporal effect

o Ex: tort case brought the last day before prescription runs out does not leave the attorney muchtime to get all the details, so what is reasonable for the attorney to know is lower in thosecircumstances than an attorney that got the case on day 1


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(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 appropriate sanctionupon 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 othermotions or requests and shall describe the specific conduct alleged to violate subdivision (b). Itshall be served as provided in Rule 5, but shall not be filed with or presented to the court unless,

within 21 days after service of the motion (or such other period as the court may prescribe), thechallenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriatelycorrected. If warranted, the court may award to the party prevailing on the motion the reasonableexpenses and attorneys fees incurred in presenting or opposing the motion. Absent exceptionalcircumstances, a law firm shall be held jointly responsible for violations committed by its partners,associates, and employees.(B) On Courts Initiative. On its own initiative, the court may enter an order describing thespecific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or partyto show cause why it has not violated subdivision (b) with respect thereto.

Opposing party brings a Rule 11 violation by motion, but that motion is not filed with the court, it isserved on the opposing party said to be making the Rule 11 violation; the opposing party then has 21days to correct the violation; if the party does correct, then the motion never is filed with the court; if theparty does not correct, then there is a hearing before the court

o This rule (the Safe Harbor Provision) was added in 1993 If the court thinks there is a Rule 11 violation, the court may enter an order of violation, thus requiring

the attorney to show cause why it has not violated Rule 11

(2)Nature of Sanctions; Limitations. A sanction imposed for violation of this rule shall be limited towhat is sufficient to deter repetition of such conduct or comparable conduct by others similarlysituated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, orinclude, directives of a nonmonetary 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 orall 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 ofsubdivision (b)(2).(B) Monetary sanctions may not be awarded on the courts initiative unless the court issues its orderto show cause before a voluntary dismissal or settlement of the claims made by or against the partywhich is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the court shall described the conduct determined to constitute aviolation of this rule and explain the basis for the sanction imposed.


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(d) Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclosure anddiscovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37.


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Federal Rule 12 (B), (G), and (H)

(B) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claimcounterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one isrequired, except that the following defenses may at the option of the pleader be made by motion: (1) lack ofjurisdiction 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 canbe granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be madebefore 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 aclaim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party mayassert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defensenumbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, mattersoutside the pleading are presented to and not excluded by the court, the motion shall be treated as one forsummary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonableopportunity to present all material made pertinent to such a motion by Rule 56.

If you have any claim against you (i.e. you are the defending party), you have Rule 12 available to you The 7 defenses of Rule 12 may be filed by motion, but do not have to be; all claims for relief may be

made by responsive pleading if one is requiredo Rule 7(A) lists the pleadings:

Complaint Answer Reply

o Only the answer and reply are responsive pleadings, and the reply is only made in response to acounterclaim

o The 7 defenses that can be filed by motion are: Lack of subject matter jurisdiction Lack of personal jurisdiction Improper venue Insufficiency of process

The paperwork was not correct Insufficiency of service of process Failure to state a claim upon which relief can be granted

The claim requires the claimant prove X, Y, and Z, but the claimant only stated Xand Y in the second part of the complaint

Failure to join a party under Rule 19o If one of these defense is going to be raised by motion, the motion must be made before pleading

Joining defenses in a responsive pleading or motion does not waive them (i.e. defenses may be joined) this is expounded upon in Rule 12(G)

12(B)(6) motion + outside materials = motion for summary judgmento Example: I am in a car wreck in 2004, but I dont file until 2006; statute of limitations has run

out, but I dont mention the date of the accident in the complaint, so you cannot file a 12(B)(6)motion against me without more material; you can file a 12(B)(6) motion and a copy of thepolice report with the date on it, and it would be treated as a motion for summary judgment


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(E) Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vagueor ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move fora more definite statement before interposing a responsive pleading. The motion shall point out the defectscomplained of and the details desired. If the motion is granted and the order of the court is not obeyed within10 days after notice of the order or within such other time as the court may fix, the court may strike the pleadingto which the motion was directed or make such order as it deems just.

This only applies to those pleadings to which a responsive pleading is permitted, so only to complaintsand answers that contain counterclaims (with the reply being the responsive pleading).


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(G) Consolidation of Defense in Motion. A party who makes a motion under this rule may join with it anyother motions herein provided for and then available to the party. If a party makes a motion under this rule butomits therefrom any defense or objection then available to the party which this rule permits to be raised bymotion, the party shall not thereafter make a motion based on the defense or objection so omitted, excepta motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.

Part (G) refers only to motions made under Rule 12, but it refers to those in and out of part (B) Rule 12 motions can be joined together (i.e. they can be made at the same time)

o It is not required to join motions, but there are consequences to not joining some motions; theconsequences are laid out in Rule 12(H)

Once you make a motion under Rule 12, you cannot make another motion until you plead, expect asprovided by Rule(H)(2) and (theoretically) subject matter jurisdiction

o The basic idea: you cannot make sequential Rule 12 motions prior to pleading Keep in mind, waiver is not imposed by Rule 12(G); misuse of Rule 12(G) creates the waiver of

defenses under Rule 12(H)


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(H) Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, orinsufficiency of service of process is waived (A) ifomitted from a motion in the circumstancesdescribed in subdivision (g), or (B) if it is neither made by motion under this rule nor included in aresponsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter ofcourse.

If defenses 2 5 from Rule 12(B) are not joined in a motion made under Rule 12 or a responsivepleading, and either a motion or responsive pleading is made, then those defenses are waived

This only refers to defenses 2 5; there are different rules for 1, 6, and 7o Ex: I make a motion under Rule 12, but do not join the defense of lack of personal jurisdiction;

that defense has now been waived

Defenses 2 5 are called waivable defenseso The theory behind waiver is the waivable defenses are claiming that for some reason, the court

has no jurisdiction over you; if you make a motion or responsive pleading, you are asking thecourt to do something (motion) or presenting contentions as your client sees them to the court(pleading); you should not be able to ask the court to do something and then tell the court it hasno jurisdiction over you; if the court has no jurisdiction over you, it should never have

done/taken your first motion/pleading

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a partyindispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be madein any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or atthe trial on the merits.

Rule 12 (B) defenses number 6 and 7 are not waived if they are not joined in the original motion orresponsive pleading, but when you can raise them (if not joined) is limited to:

o Pleading permitted under Rule 7(a) Pleadings under Rule 7(a) are complaint, reply, and answer

o Motion for judgment on the pleadings Note, pleadings is plural, which means there has to be more than one, so you have to

have given a responsive pleadingo Trial on the merits

Once I make a Rule 12 motion, I am precluded from any more pre-answer motions (save lack of subjectmatter); defenses 6 and 7 are not waived if they were not joined in the original motion/responsivepleading, but they can only be brought up at certain times

(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of thesubject matter, the court shall dismiss the action.

Lack of subject matter jurisdiction can always be raised by either party and even the courto The only exception to this rule (and some would argue it is not an exception) is that lack of

subject matter jurisdiction cannot be raised during an enforcement proceeding Ex: A default judgment is rendered against me in Mississippi; the comes to Louisiana

to have it enforced; the only defense I can raise is lack of personal jurisdiction; I cannotraise lack of subject matter jurisdiction


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Rule 13 Counterclaim and Cross-claim

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time ofserving the pleading the pleader has against any opposing party, if it arises out of the transaction oroccurrence that is the subject matter of the opposing partys claim and does not require for its adjudication thepresence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claimif (1) at the time the action was commenced the claim was the subject of another pending action, or (2) theopposing party brought suit upon the claim by attachment or other process by which the court did not acquirejurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim underthis Rule 13.

If a claim arises out of the same transaction or occurrence, the pleader must bring it in a counterclaimprovided it does not require the presence of a third party whom the court cannot get personal jurisdictionover

o Note that jurisdiction refers to personal jurisdiction; if the claim is arising out of the sametransaction and occurrence, the court will have subject matter jurisdiction under 1367 ifnothing else

If the court cannot get personal jurisdiction over the third party that is required, then thatcounterclaim is no longer compulsory, so it is not waived because you cannot bring it

Whether the third party has to be there is based on Rule 19o If the pleader does not bring such a counterclaim, the pleader loses (waives) that counterclaim,

except in two scenarios: The claim was the subject of another pending action when the current action commenced The opposing party gained jurisdiction over the defending party by attachment (rule 4(n))

and the pleader is not bringing any counterclaim

o A default judgment precludes brining up old counterclaims Ex: You sue me and get a default judgment. Upon enforcement of that judgment, I

cannot bring up a compulsory counterclaim

gains personal jurisdiction via attachment over ;property attached is valued at $80K, so that is thehighest value the is risking at the moment; if files a

counterclaim, is consenting to personal jurisdiction, sothe value at risk becomes unlimited


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(b) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing partynot arising out of the transaction or occurrence that is the subject matter of the opposing partys claim.

Permissive counterclaims will not have supplemental jurisdiction (except in certain circumstances in the2nd Circuit)


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(g) Cross-claim against co-party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of acounterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant forall or part of a claim asserted in the action against the cross-claimant.

1

2

or of a counterclaim therein refers to a permissive counterclaimotherwise it would be redundant Only one type of cross-claim must arise out of same transaction and occurrence

1 files cross claim against 2; providedone claim arises out of transaction/

occurrence that is the subject matter ofs claim (Rule 13(g)), 1 can then joinas many other claims as he has against

2 (Rule 18)


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(h) Joinder of additional parties. Persons other than those made parties to the original action may be madeparties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20.

If has a counterclaim, can join an additional party; this joinder is governed by Rule 13(h), so part beof supplemental jurisdiction would not take away jurisdiction (if supplemental was needed)

o A party joined by Rule 13(h) is not a party joined by Rule 19 or Rule 20 for the purposes ofsupplement jurisdiction

X

Note that this does not mean a person can be made a party and then have a cross-claimed filedo Rule 13(h) does not create any cross claims or counterclaimso Without Rule 13(h), all of the same parties could be joined (usually pursuant to 20), but

supplemental jurisdiction would be affected because parties joined via Rule 13(h) are NOT

parties joined via Rule 19 or 20

can join theseparties underRule 13(h)

Counterclaim


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Rule 14 Third-Party Practice

(a) When Defendant may bring in third party. At any time after commencement of the action a defendingparty, as a third party plaintiff, may cause a summons and complaint to be served upon a person not a party tothe action who is or may be liable to the third-party plaintiff for all or part of the plaintiffs claim against thethird-party plaintiff.

Defending party = anyone with an claim coming at them Rule 14 is only available to someone who is NOT a party to the action (i.e. non-parties)

o With one exception, the cannot compel the to join someone as a defendant The non-party must be liable to the for claims the has against the

o There must be contribution or indemnity The rules of jurisdiction still apply to third party defendants, so the court must have personal jurisdiction

over the third party defendant; remember, though, the 100 mile bulge rule from Rule 4(k)(1)(b) appliesto parties joined by Rule 14 and 19, so service of summons is effective to gain jurisdiction over the thirdparty defendant if that person is within the 100 mile bulge

o Also has 4(k)(1)(a) [application of state long arm statute] and 4(k)(1)(d) [federal statute]

Third party plaintiff

Third party defendant

The third-party plaintiff need not obtain leave to make the service if the third party plaintiff files the third-partycomplaint not later than 10 days after serving the original answer. Otherwise the third-party plaintiff mustobtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, herein after called the third-party defendant, shall make any defenses to the third-partyplaintiffs claim as provided in Rule 12 and any counterclaims against the third-party defendants as providedin Rule 13.

Rule 12 defenses are available to the third party just as they are available to the , though the meritswill likely be different



Rule 13 allows the third party to make counterclaims against the third party

Third party claim (impleader) Thirdparty must be liable for the sclaim against the third party

Third party can raise defenses against Third Party (think Rule 12 jurisdiction, but not venue)


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The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to theplaintiffs claim.



The third-party defendant may also assert any claim against the plaintiff arising out of the transaction oroccurrence that is the subject matter of the plaintiffs claim against the third-party plaintiff.



This basically puts the third party defendant in the same position he would have been in had he beenjoined as an original

o The only thing he cannot do is bring a permissive counterclaim alone (if he had a claim from thesame transaction/occurrence, then he could join permissive counterclaims under Rule 18 if yousay this impleader claim is the same as a third part claimremember Rule 18 only coversoriginal claims, counterclaims, cross claims, and third parties claims)

Theory: third party means something other than just impleader, so all claims within thisare third party claims (all claims under Rule 14 are third party claims within the meaning

of Rule 18)o This is called downward sloping Rule 14 claim

The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrencethat is the subject matter of the plaintiffs claim against the third-party plaintiff, and the third-party defendantthereupon shall assert any defenses as provided in Rule 12 and any counterclaims and cross-claims as providedin Rule 13.



This is the upward sloping Rule 14 claim Once and third party become opposing parties, then the third party can bring any claim (it will be

a counter claim)o Whether you are using Rule 14 or Rule 13(a)/(b) depends on who files the claim first

Third party can raise defenses Thirdparty has against (raised in

answer because all pleadings servedon all parties)

Third party can assert a claim for relief against a that risesout of the same transaction/occurrence that is the subject matter

of the claim against the third party

can assert claims againstthird party arising out of

same transaction/occurrence


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Any party may move to strike the third-party claim, or for it severance or separate trial. A third-party defendantmay proceed under this rule against any person not a party to the action who is or may be liable to the third-party defendant for all or part of the claim made in the action against the third-party defendant. The third-partycomplaint, if within the admirality and maritime jurisdiction, may be in rem against a vessel, cargo, or otherproperty subject to admirality or maritime process in rem, in which case references in this rule to the summonsinclude the warrant of arrest, and references to the third-party plaintiff or defendant include, where appropriate,a person who asserts a right under Supplemental Rule C(6)(b)(i) in the property arrested.

Rule 14 does not create any substantive rights; it does accelerate the rights (Markvicka)o If there is no allowance for indemnity or contribution in a particular jurisdiction, then Rule 14

does not create indemnity or contribution


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(b) When plaintiff may bring in third party. When a counterclaim is asserted against a plaintiff, the plaintiffmay cause a third party to be brought in under circumstances which under this rule would entitle a defendant todo so.


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Rule 15

(a) Amendments. A party may amend the partys pleading once as a matter of course at any time before aresponsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and theaction has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after itis served. Otherwise a party may amend the partys pleading only by leave of court or by written consent of theadverse party; and leave shall be freely given when justice so requires. A party shall plead in response to anamended pleading within the time remaining for response to the original pleading or within 10 days afterservice of the amended pleading, whichever period may be the loner, unless the court otherwise orders.

Applies only to any pleading (complaint, answer, reply), not to motions Right to amend once as a matter of course

o This is as opposed to with consent of the other party or with judges permissiono By leave of the court (with the judges permission) is freely given

Note that the rule doesnt say anything about what amendment is going to be; the amendment could beto add a counterclaim

o Rule 15(a) only gives temporal constraints to amending Rule 12(h)(1) [waiver] cross-references Rule 15(a), such that if you include a waivable defense in your

amended pleading, you have not waived it (but it must be amended as a matter of course)o This means if someone serves a counterclaim and omits a waivable defense, you should reply

immediately as it will cut off his ability to amend

This deals with three different parts:o How to deal with pleadings which allow a responsive pleadingo How to deal with pleadings to which a responsive pleading is not permittedo How to respond to an amended pleading

files a complaint

must amend complaint before serves an answer because the

complaint does permit a responsive pleading

serves an answer

must amend answer within 20 days because the answer does not permita responsive pleading

files an amended complaint; has same amount of time to respond to respond tothe amended complaint as did to respond to the original complaint (ex: if had

15 days left to respond to original complaint, post amendment, still has 15 daysleft to respond to amended complaint); only exception is if the had less than 10days to respond to the original complaint, then the now gets 10 days to respond toamended complaint (ex: had 4 days left to respond to original complaint when itis amended; not the has 10 days to respond to amended complaint)

Arising from A

Arisin from B

Arising from B Note: a reply can include a claim for reliefjust as an answer can


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(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by expressor implied consent of the parties, they shall be treated in all respects as if they had been raised in thepleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence andto raise these issues may be made upon motion of any party at any time, even after judgment; but failure so toamend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the groundthat it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shalldo so freely when the presentation of the merits of the action will be subserved thereby and the objecting partyfails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the

partys action or defense upon the merits. The court may grant a continuance to enable the objecting party tomeet such evidence.

If something is offered outside of the scope of the pleadings, 15(b) tells us how to get it in First two sentences cover when evidence is not objected to; third sentence is when evidence is objected

too No objection:

Treated as if they had been raised in the pleadings So if you dont object, you have essentially waived the objection to the evidence You should object on grounds of variance (varied from pleadings)

After you bring up evidence not objected to (and not included in the pleadings), thelawyer bringing the evidence can move to conform the pleadings to the evidence

There is no difference to the result of the trial, so it is not necessary for the instantcase, but it is necessary if you want to use that information at a later date for alater trial

o Objection: If objected to, the party objecting must satisfy the court that the admission of the

evidence would prejudice the objecting party in maintaining the partys action or defense

Prejudice = admission harms presentationo Ex: You dont include contributory negligence from Rule 8(c) as an

affirmative defense, but you begin to raise contributory negligenceevidence. I object on grounds of variance, and satisfy the court that your

presentation of contributory negligence will harm my presentation of thecase

Rule 8(c) says what the rule is for affirmative defenses; Rule 15(b)says what to do when the other party has violated Rule 8(c)

Remember, 8(c) is only one way to kick in 15(b); anytimeevidence is introduced that is not covered by the pleadings, 15(b)applies

The court may grant a continuance to enable the objecting party to meet the evidence In practice, Court is more likely to give continuance to a bench trial; less likely to

give in a jury trial


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(c) Relation back to amendments. An amendment of a pleading relates back to the date of the originalpleading when

(4) Relation back is permitted by the law that provides the statute of limitations applicable to theaction, or

(5) The claim or defense asserted in the amended pleading arose out of the conduct, transaction, oroccurrence set forth or attempted to be set forth in the original pleading, or

(6) The amendment changes the party or the naming of the party against whom a claim is asserted if theforegoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service ofthe summons and complaint, the party to be brought in by amendment (A) has received such noticeof the institution of the action that the party will not be prejudiced in maintaining a defense on themerits, and (B) knew or should have know that, but for a mistake concerning the identity of theproper party, the action would have been brought against the party.

The delivery or mailing of process to the United States Attorney, or United States Attorneysdesignee, or the Attorney General of the United States, or an agency or officer who would have beena proper defendant if named, satisfies the requirements of subparagraphs (A) and (B) of this

paragraph (3) with respect to the United States or any agency or officer thereof to be brought intothe action as a defendant.

This assumed you can amend an pleading, either as matter of course or by approval Parts 1 and 2 deal with the amended pleading occurring after prescription has been cut off

Part 3 deals with a person not being added in time, so prescription with regard to that person has beencut off (the requirements of part 3 make its occurrence rare)

Prescriptionperiod cut off

Event givingrise to the claim

File Pleading File Amended

Pleading

Amended pleading must relate back to the originalpleading because it arose out of the sametransaction or occurrence set forth in the originalpleading (this is 15(c)(2), or it must relate back aspermitted by law (this is 15(c)(1))

Prescriptionperiod cut off

Event givingrise to the claim

File Pleading against A File Amended Pleadingagainst B

Amended pleading to change the partys name must:

Arise from same transaction or occurrence set forth in original pleading Be filed with timeframe of Rule 4(m), which is 120 days New party must not be prejudiced by delay New party must have known or should have known the action would have

been brought against him, but for a mistake concerning identity


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(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon suchterms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences orevents which have happened since the date of the pleading sought to be supplemented. Permission may begranted even though the original pleading is defective in its statement of a claim for relief or defense. If thecourt deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifyingthe time thereof.

Supplemental pleadings add to pleading things that occur after the filing of the pleadingo Ex: I file a complaint against you for breach of contract; thereafter, you do something else to me

for which I can file a claim of relief; I would file it as a supplemental pleading

Supplemental pleadings are different than amended pleadings, because amended pleadings add to thepleading events that occurred before the filing of the pleading

You can amend a supplemental pleading


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Rule 18 Joinder

There are two types of joinder: claim joinder and party joinder Within each type of joinder, there are permissible joinders and compulsory joinders

(a) Joinder of claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, orthird-party claim, may join, either as independent or as alternate claims, as many claims, legal equitable, ormaritime, as the party has against an opposing party.

Rule 18 (a) merely states that the claimant can join as many claims as he has against the opposing partyo The claims are not required to be or precluded from being related

However, if there are claims arising from the same occurrence and they are not broughttogether, the claimant may be precluded from bringing them later

o Rule 18 says nothing of permissive and compulsory claims; both can be joined Under Rule 18, you must meet the rules first

1

2

Cross claimshow Rule 18 and Rule 13 work togethero Rule 13(g) requires that cross claims arise out of the transaction or occurrence that is the subject

matter of the original action or a counterclaim thereino Provided Rule 13(g) is met, as many additional claims as desired can be joined under Rule 18(see below)

1

2

files complaint against and

1 files cross claim against 2; providedone claim arises out of transaction/

occurrence that is the subject matter ofs claim (Rule 13(g)), 1 can then joinas many other claims as he has against

2 (Rule 18)

The 1 must have a claimtransactionally related before he can join

other non-related claims


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Remember rules of aggregation: individual can aggregate his claims, multiple s cannoto If the claims can be joined, they can be aggregated

Claim 1 ($50K)Claim 2 ($25K)

Can be a re ated to $75K, so su lemental urisdiction is not needed


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(b) Joinder of remedies; fraudulent conveyances. Whenever a claim is one heretofore cognizable only afteranother claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the courtshall grant relief in that action only in accordance with the relative substantive rights of the parties. Inparticular, a plaintiff may state a claim for money and a claim to have set a conveyance fraudulent as to thatplaintiff, without first having obtained a judgment establishing the claim for money.


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Rule 19 Compulsory Joinder

(a) Persons to be joined if feasible. A person who is subject to service of process (THIS MEANSPERSONAL JURISDICTION IS PRESENT) and whose joinder will not deprive the court of jurisdiction overthe subject matter of the action (THIS MEANS SUBJECT MATTER JURISDICTION) shall be joined as aparty in the action if (1) in the persons absence complete relief cannot be accorded among those alreadyparties, or (2) the person claims an interest relating to the subject of the action and is so situated that thedisposition of the action in the persons absence may (i) as a practical matter impair or impede the personsability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk ofincurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the personhas not been so joined, the court shall order that the person be made a party. If the person should join as aplaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff.If the joined party objects to venue(HERE IS THE VENUE REQUIREMENT OF FEASIBILITY) andjoinder of that party would render the venue of the action improper, that party shall be dismissed from theaction.

Rule 19 covers the circumstance in which can compel a new when the did not choose thatadditional

o It can also occasionally be used to compel joinder of an additional o This allows (usually) the to alter the architecture of the parties

It describes the process by which the court uses to determine if someone has to be joined, or, if he doeshave to be joined but cant be, what the court should do to continue the process

o Does this by dividing it up into need and feasibility Need

Rule 19(a)(1)o This is almost never used

Rule 19(a)(2)o Person claims an interest relating to the subject of the action and is so

situated that either (a) their absence may impair/impede the personsability to protect that interest or (b) their absence causes parties alreadyjoined (likely ) a substantial risk of incurring double, multiple, orinconsistent obligations to the claimed interest

Note: potential co-tortfeasor is not a necessary party (Temple); part of thereasoning behind Temple was that the had the opportunity to bring in the thirdparty via Rule 14

o Note that personal jurisdiction under Rule 4(k)(1)(b) [100 mile bulge]operates the same for Rule 19 and Rule 14

2nd

possible

In Temple, because 2nd possible could bebrought in via Rule 14, Court not inclined toconsider the party necessary under Rule 19

Supplemental jurisdiction will not beavailable if the and 2nd possible arenot diverse because it is a claim by a

against a party joined under Rule 19


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Feasibility If the party is needed under 19(a), then look at 3 components of 19(a):

o Personal jurisdiction Personal jurisdiction can be gained via Rule 4(k)(1)(a) [state

statute], 4(k)(1)(b) [100 mile bulge], or Rule 4(k)(1)(d) [federalstatute]

Note: if personal jurisdiction is found under Rule4(k)(1)(d), then what does that mean for supplementaljurisdiction? It means that the subject matter jurisdiction isgoing to be federal question because Rule 4(k)(1)(d) isregarding federal statute; this means you can skip 1367(b)

o Subject matter jurisdictiono Proper venue

It says if venue is improper, the party will be dismissed, but ifpersonal jurisdiction or subject matter jurisdiction is lacking, partywill be dismissed, too is there a reason why venue is separated inRule 19?

Theoretically, should personal jurisdiction and venue beseparated from subject matter jurisdiction for determining(under Rule 19(b)) if litigation can continue because theparty can consent to those jurisdictions? Is this a self-inflicted wound?

Venue refers to all venues, not necessarily the particular venue thatwas chosen

Ex: Venue is appropriate for in States A and B; filessuit in State A; compels joinder of2; venue isappropriate for 2 in States B and C; venue is still feasiblein this situation because and 2 have State B in commonas proper venue (and 2 could consent to a different venue)

This is unique because determination of feasibility is dependent on PJ, SJ, andvenueif any are missing, then the joinder is not feasible

o If a party is deemed to be necessary, but its not feasible, then move to Rule 19(b)o If a party is deemed to be necessary and it is feasible, then the court compels the joinder of the

party

Dismissal of a party pursuant to Rule 19 does not act as an adjudication on the merits; however, failureto join a party under Rule 19 does operate as an adjudication on the merits under Rule 41(b)


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(b) Determination by Court whenever joinder not feasible. If a person as described in subdivision (a)(1)-(2)hereof cannot be made a party, the court shall determine whether in equity and good conscience the actionshould proceed among the parties before it, or should be dismissed, the absent person being thus regarded asindispensable. The factors to be considered by the court include: first, to what extent a judgment renderedin the persons absence might be prejudicial to the person or those already parties; second, the extent to which,by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can belessened or avoided; third, whether a judgment rendered in the persons absence will be adequate; fourth,whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Rule 19(b) tells us what to do if the joinder is necessary but is not feasible this determines if the actionshould continue or not

o If such a party is deemed to be indispensable, then the action is dismissed To be indispensable, the party must be necessary under Rule 19(a), not feasible under

Rule 19(a), and the court cannot continue is his absence the litigation under Rule 19(b)

The criteria under Rule 19(b) is how the court determines if a party is indispensable (indispensability isa consequence of 19(a) and 19(b)) ; criteria include:

o If the will have an adequate remedy if the action is dismissed This would kick in if there was an exclusive federal jurisdiction case because the

would have no other remedy


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(c) Pleading reasons for nonjoiner. A pleading asserting a claim for reliefshall state the names, if knownto the pleader, of any persons described in subdivision (a)(1)-(2) hereof who are not joined, and the reasons theyare not joined.

Rule 19(c) must be read in conjunction with Rule 8 (and parts of Rule 9) because it is a pleadingrequirement

o Under Rule 19(c), the (or whoever is pleading a claim for relief) has to state the names ofpersons who should have been joined under Rule 19(a) [necessary] but are not, and the reasons

they are not joined Normally, Rule 19 is invoked by the

2nd

possible

Does the court have a responsibility to notify such persons?

Complaint under 19(c) if the 2nd possible isnecessary under 19(a), the should list the 2nd possible in the complaint (this almost never happens)


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Rule 20 Permissive Joinder of Parties

(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointlyseverally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series oftransactions or occurrences and if any question of law or fact common to all these persons will arise in theaction. All persons (and any vessel, cargo or other property subject to admiralty process in rem) may be joinedin one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right torelief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrencesand if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendantneed not be interested in obtaining or defending against all the relief demanded. Judgment may be given forone or more of the plaintiffs according to their respective rights to relief, and against one or more defendantsaccording to their respective liabilities.

To join a plaintiff or a defendant, the joiner must:o (1) Have a right to relief (or right asserted against them) arising out of the same transaction,

occurrence or series of transactions/occurrences, ando (2) Common question of law or fact will arise


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(b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed,delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who assertsno claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.


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Rule 22 Interpleader

(1) Persons having claims against the plaintiff may be joined as defendants and required to interplead whentheir claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground forobjection to the joined that the claims of the several claimants or the title on which their claims depend do nothave a common origin or are not identical but are adverse to and independent of one another, or that the plaintiffavers that the plaintiff is not liable in whole or in part to any or all of the claimants. A defendant exposed tosimilar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this rulesupplement and do not in any way limit the joinder of parties permitted in Rule 20.

(2) The remedy herein provided is in addition to and in no way supersedes or limits the remedy provided byTitle 28, USC 1335, 1397, and 2361. Actions under those provision shall be conducted in accordance withthese rules.


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Rule 24 Intervention

Intervention is the situation in which a non-party is reaching in to become a party There are two types of intervention: intervention as a a right and intervention as a matter or perspective

(permissive)o Note that intervention as a right is NOT compulsory

Non-party wants to intervene Non-party wants to intervene

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1)when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claimsan interest relating to the property or transaction which is the subject of the action and the applicant is sosituated that the disposition of the action may as a practical matter impair or impede the applicants ability toprotect that interest, unless the applicants interest is adequately represented by existing parties.

anyone anyone regardless of jurisdiction; this must be read in pari materia with Rule 82, which saysthe rules to not extend jurisdiction

o Anyone = anyone over which the court has jurisdiction Two situations when a party can intervene as a matter of right:

o Statute confers unconditional right Ex: the federal government can intervene as matter of right in a number of situations

o Applicant claims interest in property/transaction that is the subject of the action, and the actionmay impair or impede the applicants ability to protect that interest

Ex: Haas if party was not added under Rule 19, he could have intervened via Rule 24 This means that if you can be compel the joinder of a party under Rule 19, that party can

intervene under Rule 24 Note, however, that Rule 24 is not compulsory; there is no claim preclusion if you fail to join The advantage of Rule 24 over Rule 19 is that the feasibility issues of personal jurisdiction and venue

are not a problem because in intervening, you are consenting to those items

Supplemental jurisdiction and Rule 24(a)

Non-party wants to intervene

Non-party wants to intervene

What if the person was seeking to join as a , but the judge realigns them to side?

Supplemental ifintervener is not diverse from?Intervention will be same case and controversy (since must be

interest in same transaction/occurrence), so passes 1367(a)However, loses on 1367(b) because it is now a claim by a

against a person made a party under Rule 24

Supplemental ifintervener is not diverse from ?Intervention will be same case and controversy (since must be

interest in same transaction/occurrence), so passes 1367(a)However, loses on 1367(b) because it is now a claim by a

person seeking to intervene as a under Rule 24


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(b) Permissive intervention. Upon timely application anyone may be permitted to intervene in an action: (1)when a statute of the United States confers a conditional right to intervene; or (2) when an applicants claim ordefense and the main action have a question of law or fact in common. When a party to an action relies forground of claim or defense upon any statute or executive order administered by a federal or state governmentalofficer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statuteor executive order, the officer or agency upon timely application may be permitted to intervene in the action. Inexercising its discretion the court shall consider whether the intervention will unduly delay or prejudice theadjudication of the rights of the original parties.

Whereas intervention as a right uses the word shall, permissive intervention uses the word shall The court determines if the intervention is appropriate; the rule lays out how the court makes this

determinationo Statute allows conditional right to interveneo Common question of law or fact

This is the same language from Rule 20 (permissive joinder of parties), but does not havethe same transaction/occurrence language, so someone who could not be joined underRule 20, may be allowed to intervene

Supplemental jurisdiction and Rule 24(b)o Likely there is no supplemental jurisdiction because it would not be the same case and

controversy If it was the same case and controversy, the party would intervene under Rule 24(a)

o Regardless, if there is the same case and controversy, then the same results would occur fromRule 24(a)


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(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as providedin Rule 5. The motion shall state the grounds therefore and shall be accompanied by a pleading setting forth theclaim or defense for which intervention is sought. The same procedure shall be followed when a statute of theUnited States gives a right to intervene. When the constitutionality of an act of Congress affecting the publicinterest is drawn in question in any action to which the United States or an officer, agency, or employee thereofis not a party, the court shall notify the Attorney General of the United States as provided in Title 28, USC 2403. When the constitutionality of any statute of a State affecting the public interest is drawn in question inany action in which that State or any agency, officer, or employee thereof is not a party, the court shall notify

the attorney general of the State as provided in Title 28, USC 2403. A party challenging the constitutionalityof legislation should call the attention of the court to its consequential duty, but failure to do so is not a waiverof any constitutional right otherwise timely asserted.

The intervener files a complaint in intervention The response is an answer in intervention


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NOTICE

Rule 41 Dismissal of Actions

(a) Voluntary Dismissal: Effect Thereof.

(1)By Plaintiff; by stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute ofthe United States, an action may be dismissed by the plaintiff without order of the court (i) byfiling a notice of dismissal at any time before service by the adverse party of an answer or of a

motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal

signed by all parties who have appeared in the action. Unless otherwise stated in the notice ofdismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates asan adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of theUnited States or of any state an action based on or including the same claim.

Rule 23 refers to class actions and Rule 66 refers to receiverships; they have their own rules because ofthe number of parties involved

Without prejudice means can file the action again; with prejudice means you cannot file the action again(if dismissing, you want to dismiss without prejudice)

Two ways for to dismiss s claim:o File a notice of dismissal either

before service by adverse party of the answer note it says answer; this does not apply to a reply this is triggered by the service of the answer

before motion for summary judgment, whichever occurs first a 12(B)(6) (+ outside material) motion acts as a motion for summary judgment, so

it also triggers the point where you can no longer dismisso Filing a stipulation of dismissal signed by all parties who have appeared in action

This is technically without order of the court but all parties have to have appeared inaction

You only use the stipulation method if the first method (part i) is no longer available toyou

State courts do not have to follow Rule 41, but a dismissal in state court acts as a dismissal in federalcourt for purposes of limitations to the number of times you can refile

o How the first filing was dismissed is irrelevant (presuming it was without prejudice), you canalways file a second time; the manner of the second dismissal determines if you can refile a thirdtime

o When there are sequential dismissals and the second dismissal is a dismissal by notice in federalcourt, the second dismissal acts as an adjudication on the merits

NOTICEFirst time,dismiss by

NOTICE

NOTICESTIPULATION

STIPULATION

STIPULATION

STIPULATION

Second time,dismiss by

Can you file a third time? NO NOYES YES


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(2)By Order of the Court. Except as provided in paragraph (1) of this subdivision of this rule, an actionshall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms andconditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to theservice upon the defendant of the plaintiffs motion to dismiss, the action shall not be dismissedagainst the defendants objections unless the counterclaim can remain pending for independentadjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph iswithout prejudice.

Rule 41(A)(2) is only used if (A)(1) is not available, which means that the opportunity for part (i) hastemporally passed by and the will not agree to part (ii)

The court has much leeway in its determination of whether or not to dismiss, but there is one instance inwhich the court cannot dismiss

o The court cannot dismiss if the has pleaded a counterclaim prior to the service upon the ofthe s motion to dismiss, unless that counterclaim can stand alone

o There are some exceptions to this via supplemental jurisdictiono Supplemental jurisdiction is a statutory process by which some claims that would not

stand on their own may be allowed to Ex:

Under FSMJ, the counterclaim would not be able to stand alone because itis not over $75,000 (provided this was based on diversity); however, viasupplemental jurisdiction, this may be allowed to stand alone

o Note, you do not worry about whether or not the claim can be dismissed due to the counterclaimunder Rule 41(A)(i) because the fact that there is a counterclaim means there was an answerserved by the adverse party, so 41(A) is temporally cut off from use

Claim for $80,000

Counterclaim for $50,000


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(b) Involuntary dismissal: effect thereof. For failure of the plaintiff to prosecute or to comply with theserules or any order of the court, a defendant may move for dismissal of an action or of any claim against thedefendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivisionand any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for impropervenue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

Local rules usually govern what constitutes failure of the plaintiff to prosecute Not complying with the rules can get a involuntarily dismissed

o As clearly stated, the can move for a dismissal if the fails to prosecute or if the does notcomply with the rules, but the court on its own can also move to dismiss

Dismissals that do not act as an adjudication on the merits:o Dismissals not included in Rule 41(a)(1) or (2), i.e. voluntary and involuntaryo Dismissals for lack of jurisdiction

o Jurisdiction in this sense refers to all methods of obtaining jurisdiction, including subjectmatter jurisdiction, personal jurisdiction, improper service, improper service of process

o Dismissal for improper venueo Dismissal for failure to join a party

All other dismissals act as an adjudication upon the merits, unless the court specifies otherwiseo Ex: The files a motion for improper service of process; judge dismisses according to motion.

Is that an adjudication on the merits? No, because improper service of process falls in thedismissal for lack of jurisdiction clause, for which a dismissal does not act as an adjudicationon the merits.

o Ex: The files a motion for failure to state a claim upon which relief can be granted; judgedismisses according to motion. Is that an adjudication on the merits? Technically, yes.However, note that the court can otherwise specify, and frequently particularly when talkingabout failure to state a claim the court will specify that it is not an adjudication on the merits.

Also, read Rule 41(b) in light of Rule 60(b), which provides a number of scenarios in which the courtmay relieve a party from final judgment


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(c) Dismissal of counterclaim, cross-claim, or third-party claim. The provisions of this rule apply to thedismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alonepursuant to paragraph (1) of subdivision (a) of this rule shall be made before a responsive pleading is served or,if there is none, before of the introduction of evidence at the trial or hearing.

Whereas Rule 41(a)(2) dealt with counterclaims in the context of the claimant trying to dismiss a claimafter the defending party pleaded a counterclaim, Rule 41(c) deals with the claimant of the counterclaimtrying to dismiss the claim

The rules of 41(c) are the same as the rules of 41(a) whoever the claimant is (regardless of the type ofclaim) can dismiss voluntarily until the answer (or in the case of a counterclaim, reply) has been servedby the adverse party, or the adverse party has served a motion for summary judgment


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Rule 55

(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead orotherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerkshall enter the partys default.

If I file suit against you, and hear nothing (i.e. you fail to plead or defend) and the appropriate time toanswer goes by, Rule 55(a) provides the first step at getting a default judgment: entry of default

This is a clerical step in the process (hence why it is done by the clerk), but it is a necessary first step


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(b) Judgment. Judgment by default may be entered as follows:

(1)By the Clerk. When the plaintiffs claim against a defendant is for a sum certain or for a sum whichcan by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of theamount due shall enter judgment for that amount and costs against the defendant, if the defendant hasbeen defaulted for failure to appear and is not an infant or incompetent person.

You have to put forth a certain sum or provide the computation that will produce proper sum fordamages because the clerk does not have the facilities to come up with a dollar amount

Note that the has to be faulted for failure to appear (so could appear and then just disappear) andcannot be infant/incompetent in order for the clerk to be able to enter the judgment

The clerk will give only the costs that are asked; the court (under part 2 and Rule 54(b)) can give youless neither will give you more

(2)By the Court. In all other cases the party entitled to a judgment by default shall apply to the courttherefore; but no judgment shall be entered against an infant or incompetent person unless representedin the action by a general guardian, committee, conservator, or other such representative who hasappeared therein. If the party against whom judgment by default is sought has appeared in the action,the party (or, if appearing by representative, the partys representative) shall be served with written

notice of the application for judgment at least 3 days prior to the hearing on such application. If, inorder to enable the court to enter judgment or to carry it into effect, it is necessary to take an account orto determine the amount of damages or to establish the truth of any averment by evidence or to make aninvestigation of any other matter, the court may conduct such hearings and order such references as itdeems necessary and proper and shall accord a right of trial by jury to the parties when and as requiredby any statute of the United States.

A default judgment cannot be entered against an incompetent/infant without his/her guardian appearingo Does this mean that if the tutor never shows, you can never get a default against

incompetent/infant? Technically (and textually) yes, but all you would do is petition court to geta new tutor for the incompetent/infant on the grounds that the current tutor is not protecting the

best interest of the subject


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(c) Setting aside default. For good cause shown the court may set aside an entry of default and, if ajudgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).


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(d) Plaintiffs, counterclaimants, cross-claimants. The provisions of this rule apply whether the party entitledto the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim orcounterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c).

Note this says party instead of/; this is because both and can have counterclaims and crossclaims


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(e) Judgment against the United States. No judgment by default shall be entered against the United States oran officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory tothe court.


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Rule 82 Jurisdiction and Venue Unaffected

These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or thevenue of actions therein. An admiralty or maritime claim within the meaning of Rule 9(h) shall not be treatedas a civil action for the purposes of Title 28, U.S.C. 1391-1392.

Rules do not extend or limit jurisdiction

Claim A ($40K) The two claims can be joined,Claim B ($30K) but subject matter jurisdiction is still lacking


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28 USC 1335 Statutory Interpleader

(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature ofinterpleader filed by any person, firm, or corporation, association, or society having in his or its custody orpossession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy ofinsurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment orthe loan of money or property of such amount or value, or being under any obligation written or unwritten to theamount of $500 or more, if

(1) Two or more adverse claimants, of diverse citizenship as defined in subsection (a) or (d) of section1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one ormore of the benefits arising by virtue of any such obligation; and if (2) the plaintiff has deposited suchmoney or property or has paid the amount of or the loan or other value of such instrument or the amountdue under such obligation into the registry of the court, there to abide the judgment of the court, or hasgiven bond payable to the clerk of the court in such amount and with such surety as the court or judgemay deem proper, conditioned upon the compliance by the plaintiff with the future order or judgment ofthe court with respect to the subject matter of the controversy.

(b) Such an action may be entertained although the titles or claims of the conflicting claimants do not have a

common origin, or are not identical but are adverse to and independent of one another.


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28 U.S.C. 1367 Supplemental Jurisdiction

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in anycivil action of which the district courts have original jurisdiction, the district courts shall have supplementaljurisdiction over all other claims that are so related to claims in the action within such original jurisdiction thatthey form part of the same case or controversy under Article III of the United States Constitution. Suchsupplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

Before determining if there is supplemental jurisdiction, you have to determine if you need supplementaljurisdiction; supplemental jurisdiction is never used as the basis of jurisdiction (must have original)

Claim A ($80K)Claim B ($5K)

Claim A ($40K)Claim B ($45K)

Claim A ($40K)

Claim B ($30K)

General rule: if district courts have original jurisdiction (first requirement to meet), then the court hassupplemental jurisdiction over all claims related (including joined claims)

o First step: have original jurisdictiono Second step: the claims must be part of the same case and controversy

NOTE: case/controversy is not defined by rule 18; simply because claims are joined doesnot mean they are part of the same case and controversy (case/controversy = (kind of)same transaction and occurrence)

Statute is intended to codify Gibbs and overrule Finnleyo United Mine Workers v. Gibbs: federal courts may exercise jurisdiction over a state law claim(not based on diversity, so lacking FSMJ) if it has a common nucleus of operative fact (same

transaction or occurrence) with a federal law claim to which it is joined this is called pendentjurisdiction

o Finnley changed the rule to say pendent jurisdiction is only present when Congress says it iso The first sentence codifies Gibbs; the last sentence overrules Finnley

Under the idea that claims involving joined parties are included in supplementaljurisdiction, as long as one party satisfies the amount in question for FSMJ, the otherparties (provided their claims are from the same case and controversy and they areproperly joined under Rule 20) will also have supplemental jurisdiction (if joinedproperly under Rule 20) (highlighted in recent SCOTUS decision ofAllapattah)

You have FSMJ, so ou do not need su lemental urisdiction

You have FSMJ via aggregation, so you do not need supplemental jurisdiction

You do not have FSMJ, so you would need supplemental jurisdiction, but thereis no original jurisdiction, so you do not have supplemental jurisdiction under 1367 (a)


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(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 ofthis title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims byplaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure,or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking tointervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over suchclaims would be inconsistent with the jurisdictional requirements of section 1332.

If there is supplemental jurisdiction under part (a), then check in part (b) if the original claim is basedon diversity ( 1332); part (b) removes some supplemental jurisdiction valid under part (a)

o This does not undo Finley because Finley was founded on federal question over claims by plaintiffs against persons made parties

1

2

1

2

Strawbridge rule is invalidated in one instance by part b

1= LA

MS

2 = MS

o How could courts look at this to not violate Strawbridge? 1 and 2 are part of one case and controversy, so the court did not have original

jurisdiction over them if not completely diverse (Strawbridge rule) Courts could look at 1367 (c) and court could take away saying it is an exceptional

circumstance

There is no right to supplemental jurisdiction Note the asymmetry with regards to supplemental jurisdiction as it applies to Rule 14

LA MS

Third PartyLA

Third PartyMS

Ifs are joined under Rule 20, the part (b) does not take away supplemental jurisdiction

Part (b) removes supplemental jurisdiction for s joined under Rule 14(third party), 19 (compulsory), 20 (permissive), and 24 (intervention)

Strawbridge is violated because 2 and are not diverse, but does that matter under part (b)

Complaint A

impleads Third Party based on Rule 14(b),but 1367(b) takes away supplemental

jurisdiction [if doesnt meet diversity of 1332] because it is a claim by a against a

person made party under Rule 14

impleads Third Party based on Rule 14(a), but 1367(b)does not take away supplemental jurisdiction [regardless

of diversity] because its the impleading the party, not aclaim by the - Bockrath thinks this is a situation inwhich a court mi ht im ose 1367 c for e uit sake


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(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if -

(1) the claim raises a novel or complex issue of State law,(2) the claim substantially predominates over the claim or claims over which the district court has

original jurisdiction,(3) the district court has dismissed all claims over which it has original jurisdiction, or(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

If there is supplemental jurisdiction under parts (a) and (b), then part (c) may take supplementaljurisdiction away

This codifies the part ofGibbs that says when there is supplemental jurisdiction that is not excluded in(b), but the court will decline to exercise jurisdiction anyway


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(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the sameaction that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a),shall be tolls while the claim is pending for a period of 30

Download - Sally Richardson - Basic Civil Procedure II.pdf

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