Civil Litigation Of Procedures 1345 chat 1-7
Third-Party Complaint
A complaint brought by a defendant in a lawsuit, based on the claims in a lawsuit, against someone not named in the original lawsuit. Separate from the Answer. A defendant has 14 days to file a Third Party Complaint after filing the Answer.
third-party complaint
A complaint brought by a defendant in a lawsuit, based on the claims in that lawsuit, against someone not named in the original lawsuit.
Indemnification
A concept allowing a defendant who has paid a judgment to seek reimbursement from another more culpable party, usually where the defendant seeking indemnification has done nothing wrong, but is nevertheless liable or where the parties have an agreement that one party will indemnify the other.
indemnification
A concept allowing a defendant who has paid a judgment to seek reimbursement from another more culpable party, usually where the defendant seeking indemnification has done nothing wrong, but is nevertheless liable or where the parties have an agreement that one party will indemnify the other.
Rule 54(c):
A default judgment must NOT: 1) Award relief that differs in kind from what is demanded in the pleadings. Ex: If P demands only injunctive relief in the complaint, P cannot be awarded compensatory damages by default judgment. 2) Award relief that exceeds in amount demanded in the pleadings.
What effect does waiving service of the summons have on the defendant's time to answer the complaint?
A defendant who waives service of the summons is allowed extra time to answer the complaint. A defendant within the United States who waives service must answer within 60 days from when the waiver request was sent, instead of the usual 21 days after service.
What consequences do the Federal Rules of Civil Procedure impose on a defendant within the United States who fails, without good cause, to agree to a request to waive service of the summons?
A defendant within the United States who fails, without good cause, to agree to a request to waive service of the summons must pay (1) the plaintiff's expenses later incurred by making service and (2) the expenses, including attorney's fees, of any motion that the plaintiff must file to collect the service expenses.
Permissive Counterclaim
A defendant's claim against a plaintiff that a defendant is allowed, but not required to make; one that is not necessarily related to the plaintiff's claim.
permissive counterclaim
A defendant's claim against a plaintiff that a defendant is allowed, but not required to make; one that is not necessarily related to the plaintiff's claim.
Compulsory Counterclaim
A defendant's claim against a plaintiff that must be brought in the lawsuit or is forever barred; one that is based on the same subject or transaction as the original claim.
compulsory counterclaim
A defendant's claim against a plaintiff that must be brought in the lawsuit or is forever barred; one that is based on the same subject or transaction as the original claim.
Motion
A formal request of the court for some kind of order.
contingency fee
A lawyer's compensation paid from money recovered in a lawsuit. Must be in writing - rule 1.04 states the method of determining fee. Must have propriety hoover v. slovacek
Demurrer
A legal pleading in some state jurisdictions that attacks the validity of another pleading (usually a complaint) in that on its face, the pleading does not state facts that satisfy the requirements of the pleading.
demurrer
A legal pleading in some state jurisdictions that attacks the validity of another pleading in that on its face, the pleading does not state facts that satisfy the requirements of the pleading.
Motion for a more definite statement
A motion made in response to a complaint in which the defendant challenges the clarity or specificity of the complaint.
motion for a more definite statement
A motion made in response to a complaint in which the defendant challenges the clarity or specificity of the complaint.
motion to dismiss
A party's request that the court strike or terminate the case prior to any judgment.
Motion to Dismiss
A party's request that the court strike or terminate the case prior to any judgment. Must be filed before an answer within the time permitted to answer. If denied, the court requires answer within 14 days. Defenses Under Rule 12 of Federal Rules of Civil Procedure: 1.Lack of subject matter jurisdiction 2.Lack of personal jurisdiction 3.Improper Jurisdiction 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 (an indispensable party). *1, 6, and 7 can be used as a defense at any time but all the other defenses must be raised in an answer or motion or they are waived.
Motion to Amend
A request by one party to the court to allow a change in the content of the pleading.
Motion for Sanctions
A request for penalties for violating the provisions of Rule 11 of the Federal Rules. This is for attorneys and frivolous lawsuits.
Motion for a protective Order
A request that the court limit the other party's right to discovery (Rule 37)
Motion for change of Venue
A request to transfer to another court.
Qualified Defense
A type of answer denying all of the allegations of the complaint except those that are specifically admitted.
qualified denial
A type of answer denying all of the allegations of the complaint except those that are specifically admitted.
General Denial
A type of answer in which all of the allegations of the complaint are denied.
general denial
A type of answer in which all of the allegations of the complaint are denied.
Specific Denial
A type of answer in which the defendant specifically replies to each of the contentions alleged in the complaint.
specific denial
A type of answer in which the defendant specifically replies to each of the contentions alleged in the complaint.
affidavit
A written statement sworn to under penalty of perjury before a notary or other person permitted by law to administer an oath.
Affidavit
A written statement sworn to under perjury before a notary or other person permitted by law to administer an oath.
Rule 9 (f)
"An allegation regarding time and place is material when testing the sufficiency of a pleading."
Rule 9(c)
"an act or event that must occur before some legal consequence takes effect" 1. Generally plead that condition precedents have occurred. 2. A denial or challenge of performance or occurrence shall be made specifically and with particularity.
Rule 8(a)(1)
(1) a short and plain statement of the grounds for the court's jurisdiction unless the court already has jurisdiction and the claim needs no new jurisdictional support; SMJ FEDERAL QUESTION SUPP. JURIS.
Rule 8(a)(2)
(2)the pleader is entitled to relief include facts to support each element of claim.
Rule 8(a)(3)
(3) demand for the relief sought, which may include relief in the alternative or different types of relief.
Motion for judgment as a matter of law
(Rule 50). Made in Jury trial, if granted, results in the judge entering a judgment without allowing the jury to consider the evidence.
Due Process
(law) the administration of justice according to established rules and principles, Person shall not be deprived of life, liberty or without appropriate legal procedures.
Time Limit to contest the action
-21 days in Federal Court under Rule 12 unless the defendant waived service under Rule 4. -60 days if the request for waiver was sent. -90 days if the request for waiver was sent to a defendant out of the United States. -60 days for special circumstances where the U.S. government, a federal agency, or a federal employee is the defendant.
Caption (for an Answer)
-Plaintiff and Defendant's name. -Title "Answer to Complaint" -Docket Number -If there are multiple parties on either side then last name and "et al" (latin phrase for and others) is used. -Also note if the defense is requesting a jury if the plaintiff did not.
Specify the type of relief:
1)Money damages 2)Equitable relief -For equitable relief, must state specifically what you want. 3) Declaratory judgement (indicating the specific declaration sought- ask judge to declare rights)
Two basis for challenging a lawsuit
1. Contest the facts of the case 2. Challenge the action on some legal basis.
Rule 12(b)(6)
1. Legal inadequacy - asserts a claim not recognized by the applicable substantive law 2. Factual inadequacy - claim alleged is implausible or doesn't satisfy applicable Rule 8 pleading requirements
Defendants options to a Complaint
1. They can contest the lawsuit. 2. negotiate a settlement with the plaintiff. 3. Do Nothing.
Citation / Service
1. in person (by constable) 2. registered mail (certified mail-return receipt requested), if person fails or isn't available 3. file an affidavit and go to court 4. substituted service- leave w/ 16 yr+ where defendant can normally be found, home/work 5. any other method court approves 6. service by publication-must be approved by court, when defendants cannot even be determined (can't figure out who owns property), publish in the local paper- very specific requirements
The federal rule of civil procedure that governs when an answer to a complaint shall be served is
12(a)
The federal and North Carolina rule of civil procedure that defines the general scope and limits of discovery is Rule
26
The federal rule and North Carolina rule of civil procedure that defines the general scope and limits of discovery is Rule
26
Depositions are specifically covered in the North Carolina and Federal Rules of Civil Procedure in rules
27-32
Under NC Rules how many days does a responder have to answer interrogatories
30
A response to a request for admission must be made in
30 days
A party must amend their list of witnesses and any prior response to a discovery request, if it is no longer accurate, by
30 days before trial
The Federal and North Carolina Rule that covers interrogatories is
33
One party may request the other party to undergo a physical or mental exam under Federal Rule
35
Compelling discovery is covered in detail in Federal Rule
37
The federal rule setting out the requirements for service of subpoenas is Rule
45
According to your text there are _____ forms of discovery
5
Under NC Rules how many interrogatories may a single plaintiff ask a single defendant?
50
The basic requirements for a motion are set out in Federal Rule of Civil Procedure
7(b)
Affirmative Defenses to Contract Disputes
Accord and Satisfaction Duress Estoppel Failure of Consideration Fraud Illegality Payment Release Statute of Frauds Waiver
Entry of Default
Action by a court clerk noting that the defendant has failed to file a proper response to the complaint.
entry of default
Action by a court clerk noting that the defendant has failed to file a proper response to the complaint.
Motion to Dismiss
An action that is a request that the court terminate the lawsuit immediately, without hearing on the merits of the plaintiff's claim
Open Stipulation
An agreement between parties or their attorneys that a defendant need not answer a complaint within the time directed by aw and need not answer until specifically notified by the plaintiff to do so.
open stipulation
An agreement between parties or their attorneys that a defendant need not answer a complaint within the time directed by law and need not answer until specifically notified by the plaintiff to do so.
Stipulation Enlarging time to respond
An agreement between the attorneys in an action by which the defendant's attorney has additional time to respond. Subject to Court Approval in Federal Court. *Always make sure to state "Answer or otherwise respond" to avoid complaints or objections if it is decided to serve a motion to dismiss or some other legal challenge to the complaint.
Discovery Motions
An essential part of the litigation process. Parties of the lawsuit are able to discover facts relevant to the case. Motion to Compel, Motion for a Protective Order
Affirmative Defenses to All Cases
Arbitration Laches Res Judicata Statute of Limitations
Affirmative Defenses to Tort Cases
Assumption of the risk Contributory Negligence Injury by Fellow Servant
Trail Motions
At the beginning of trial, are often made in immediate response to testimony or other evidence. Motion in Limine, Motion for judgment as a matter of Law.
A Response to a Request for Production is signed by
Attorney
Oppose a motion
Attorney serves and files papers in opposition
Service and Filing
Can be served to Plaintiff or their lawyer by first class mail, fax, or electronically if permitted by plaintiff's lawyer. A certificate of service or proof of service to prove who was served, how they were served, and by whom it was served needs to be attached to the original Answer and then filed with the court. Fees are required.
The most common type of deposition which starts at beginning of the deposition and continues through the end of the deposition
Chronological
Motion to Dismiss in Federal Proceedings
Court lacks subject matter or personal jurisdiction, improper venue, when the process (summons) or service of process is insufficient, the complaint fails to state a claim upon which relief can be granted, or when a necessary party has not been joined (rule 12)
Motion to Quash Return of Service
Defendant claims "improperly served" with the summons and complaint.
Body (for an Answer)
Denial of All Allegations Denial of Information and Belief Admission of Allegation Admission in Part; Denial in Part Qualified Denial Affirmative Defenses
Posttrial Motions
Directed at the judgment that the trial court has rendered. May also relate to the assessment of costs against the party who has lost the case.
Motion in Limine
Do not need to be in writing, request that court exclude evidence (due to graphic in nature, or prejudicial)
Rule 8(d)(1)
Each allegation must be simple, concise, and direct. No technical form is required.
Verification
Express Statement that the contents are true under penalty of perjury. Not done in Federal Court.
affirmative defense
Facts alleged by a defendant in an answer, which if proven, defeat plaintiff's claim, even if plaintiff can prove all the elements of his cause of action.
Affirmative Defense
Facts are alleged by a defendant in an answer, which if proven, defeat plaintiff's claim, even if plaintiff can prove all the elements of his cause of action.
Mandatory disclosure is governed by
Federal Rule 26(a)
Answer Types
General Denial Specific Denial Qualified Denial Affirmative Defense
What methods may be used to serve an individual in a foreign country if (1) there is no internationally agreed-upon method for service in that country or (2) an international agreement does not specify all permissible methods of service?
If (1) there is no internationally agreed-upon method for service in a foreign country or (2) an international agreement does not specify all permissible methods of service, then an individual may be served: (1) as required by the foreign country's law for service in that country in its courts of general jurisdiction; (2) as a foreign authority directs in response to a request for assistance; (3) by personal service, unless prohibited by that country's law; or (4) by using any form of mail that the clerk addresses and sends to the defendant and that requires a signed receipt, unless this method is prohibited by the foreign country's law. This rule applies to service on individuals, corporations, partnerships, and associations, except that the provision for personal service applies only to individuals.
If a plaintiff fails to meet the initial deadline for serving a defendant within the United States, what must the court do in response?
If a plaintiff fails to meet the initial deadline for serving a defendant within the United States, the court's response depends on the reason for the plaintiff's failure. If the plaintiff lacks good cause for the failure, then the court must either (1) dismiss the case without prejudice, which allows the plaintiff to refile the case later or (2) order the plaintiff to serve the defendant within a specified time. The court may take these steps on its own initiative or in response to a party's motion. If the plaintiff has good cause for the failure, then the court must grant the plaintiff an appropriate amount of additional time for service.
What is the function of service of process in a civil case?
In a civil case, service of process fulfills the court's obligation to provide due process of law before exercising personal jurisdiction over the defendant. The two primary components of due process are notice of the lawsuit and an opportunity to be heard in response. Service of process gives the defendant formal notice that that the case is pending. Service of process also informs the defendant of the time and manner in which the defendant must respond to be heard. By fulfilling the requirements of due process, service of process enables the court to exercise its personal jurisdiction over the defendant and decide the case. Without due process, the court may do neither of these things.
counterclaim
In a civil lawsuit, a claim for some relief made by a defendant against the plaintiff.
Counterclaim
In a civil lawsuit, a claim for some relief made by a defendant against the plaintiff. Included with the Answer to a Complaint.
cross-claim
In a civil lawsuit, a claim made by one defendant against another related to the plaintiff's claims.
Cross-claim
In a civil lawsuit, a claim made by one defendant against another related to the plaintiff's claims. Included with the answer to a complaint.
In a federal civil case, what are the primary methods authorized for serving a corporation, partnership, or association within the United States?
In a federal civil case, the primary methods authorized for serving a corporation, partnership, or association within the United States are: (1) using the methods authorized by the law of the state in which the federal court is located OR the state where service is made or (2) delivering the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if an authorization statute requires—by also mailing a copy of the summons and complaint to the defendant.
In a federal civil case, what are the primary methods authorized for serving an individual within the United States?
In a federal civil case, the primary methods authorized for serving an individual within the United States are: (1) the methods authorized by the law of the state in which the federal court is located or the state where service is made; (2) personal service, which requires delivering the summons and complaint personally to the defendant; (3) abode service, which requires leaving the summons and complaint at the defendant's dwelling or usual place of abode with someone of suitable age and discretion who resides there; and (4) agency service, which requires delivering the summons and complaint to an agent of the defendant who is authorized by appointment or by law to receive service of process.
Reply
In federal practice, a pleading in response to an answer sometimes required of a plaintiff.
reply
In federal practice, a pleading in response to an answer sometimes required of a plaintiff.
Motion for More Definite Statement
In response to a complaint in which the defendant challenges the clarity or specificity of the complaint. Too vague or ambiguous.
Name the methods of discovery
Interrogatories Depositions Requests for Production Requests for Admissions Mental and Physical evaluation
A notice that is recorder against a particular real property alerting potential purchasers that there is a dispute about the title of a property is a
Lis Pendens
The civil rule that covers Requests for Production of Documents and Things is
NC 34
The civil rule covers subpoenas is
NC 45
If a defendant waives service of the summons, does the defendant also waive any objections to personal jurisdiction or to venue?
No. A defendant who waives service of the summons does not thereby waive any objections to personal jurisdiction or to venue. This rule is designed in part to encourage waivers of service by making clear that such important objections are not also waived.
Does due process always require personal, physical service of process on the defendant?
No. Due process requires that notice be provided by some method that is reasonably calculated under the circumstances to inform the defendant of the lawsuit and the opportunity to be heard. Personal, physical service is one such method of providing notice, but the law permits others. In exceptional cases—for example, if the defendant evades service or cannot be found with reasonable effort—alternative methods of service may satisfy due process even if notice never actually reaches the defendant. While actual notice is always preferred, due process does not invariably require that attempts to notify the defendant succeed.
A plaintiff sued a defendant in federal court. Both parties resided in the state in which the plaintiff filed suit. The plaintiff emailed a copy of the complaint to a mutual acquaintance of the plaintiff and the defendant. The acquaintance then emailed the complaint to the defendant. The defendant replied to this email, saying, "I read the complaint, and I am shocked to learn that I'm being sued!" Ignoring any issue of state-law methods of service, has the defendant received legally adequate notice of the suit?
No. The defendant has not received adequate notice of the suit because the defendant has not been properly served. Proper notice requires the plaintiff to serve the defendant using one of the methods provided by the Federal Rules of Civil Procedure. The courts insist on formal service to ensure that all defendants receive notice and an opportunity to be heard. A defendant's actual knowledge of the lawsuit is not a substitute for formal service. Here, the plaintiff has done nothing to serve the defendant. Instead, the defendant learned of the lawsuit through an email from an acquaintance. However, the receipt of an email from a third party is not a method of service recognized by the federal rules. Though the email informed the defendant of the lawsuit, this knowledge does not excuse the plaintiff from carrying out formal service. Thus, the defendant has not received adequate notice.
A plaintiff sued a defendant in federal court. After the case was filed, but before the defendant was served, the plaintiff's attorney called the defendant's attorney to discuss the case. During the call, the plaintiff's attorney asked the defendant's attorney if the defendant would waive formal service of the summons. The defendant's attorney replied, "Yes, just send over the complaint." Later that day, the plaintiff's attorney delivered a paper copy of the complaint by courier to the defendant's attorney. The plaintiff's attorney did not make any further efforts to serve the defendant. Have the parties complied with the procedures for waiving service of the summons under the Federal Rules of Civil Procedure?
No. The parties have not complied with the procedure for waiving service of the summons. Under the Federal Rules of Civil Procedure, the plaintiff may ask the defendant to waive formal service of the summons. However, both the waiver request and the defendant's agreement to waive must be in writing and in the form specified by the federal rules. Here, the plaintiff's attorney made only a verbal request for the defendant to waive service of process, and the defendant's attorney made only a verbal reply. Neither the request to waive nor the agreement to waive was in writing. Thus, the parties have failed to satisfy the procedure for waiving service of the summons under the federal rules.
The plaintiff sued the defendant in federal court. The plaintiff hired a process server, who went to the defendant's house to serve the summons and complaint. The door was answered by a cable-company technician who was temporarily at the house making a service call. The technician explained that the defendant had gone to run an errand but would be back in 15 minutes. The process server gave the summons and complaint to the technician, who promised to give the documents to the defendant when he returned. The technician later gave the defendant the documents. Ignoring any issue of state-law methods of service, has the process server carried out proper abode service?
No. The process server has not carried out proper abode service. Under the Federal Rules of Civil Procedure, abode service requires leaving the summons and complaint at the defendant's dwelling or usual place of abode with someone of suitable age and discretion who resides there. Here, the requirements for abode service were not met. The process server did leave the documents at the plaintiff's dwelling, and the technician—who was presumably a competent adult—was likely someone of suitable age and discretion. However, the final requirement for abode service is that process must be left with someone who resides at the abode. The technician did not reside at the defendant's house but was there temporarily on a service call. Thus, the technician was not eligible to accept the documents, and abode service was not proper.
Motion in "two different" context
One hand it refers to the whole process of making a request for an order from the court. On the other hand, it is used to refer to one of the documents filed in support of that request.
Motion for Summary Judgment
One party asks the court to order that judgment be entered as a matter of law, no trial necessary, because there are no real disputes regarding material facts.
Motion to Compel
One party refuses to provide information to another.
Personal Jurisdiction
Personal jurisdiction is a court's jurisdiction over the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law and facts involved in the suit.
Answer
Pleading that is filed in court. It contains a caption, body, or allegations, prayer or "wherefore" clause, and signature.
Rule 10(b)
Pleadings shall contain separately numbered paragraphs, each limited to a single set of circumstances (if practicable).
Motion to Strike
Request that the court delete portions of a pleading that are insufficient, redundant, immaterial or scandalous. (rule 12 (f) ).
Rule 9 (g)
Requires an item of special damage to be specifically stated.
Federal Rules of Civil Procedure cover pleadings contents in
Rule 10
When the opposing party is to bring documents to a deposition she or he should be served with a
Rule 34 request for production
Who may serve the summons and complaint on the defendant?
Service may be made by any person who is at least 18 years old and who is not a party to the suit. Thus, while the plaintiff must make the arrangements for service, the plaintiff herself cannot serve the defendant.
What is service of process?
Service of process is the formal delivery of a pleading, a summons, or other legal document, typically to someone who is required by the document to respond to the court. Service of process may be accomplished by actual, physical delivery of a document or by other approved methods for notifying someone of an obligation to respond.
Motion for judgment on the pleadings
The moving party claims that the allegations in the pleadings are such that no contested issues remain and judgment can be entered for only one party. (defendant were to admit all of the allegations)
The movant
The moving party making the motion
Prayer, "Wherefore" Clause and Signature
The prayer is a request that the plaintiff usually receive no recovery. Then the date, signature and address of the lawyer.
Contribution
The right of a person who has paid an entire debt (or judgment) to be reimbursed a proportionate share of the judgment from another person who is responsible for the debt.
contribution
The right of a person who has paid an entire debt, or judgment, to be reimbursed a proportionate share of the judgment from another person who is also responsible for the debt.
Motion for a New Trial
The right to appeal in a civil trial. In jury trials and court trials. Grounds for such a motion may include: jury impropriety, mistake in law, or newly discovered evidence.
In a federal civil case, what is the summons?
The summons in a federal civil case is a formal document directed to the defendant and bearing the seal of the court. The summons contains required information about the case, including the identity of the plaintiff, the time within which the defendant must respond, and the consequences of a failure to respond in time.
Rule 6 (d)
Time prescribed is less than 11 days, not including weekends
What procedure must a plaintiff follow to ask a defendant to waive service of the summons?
To ask a defendant to waive service of the summons, a plaintiff must send the defendant a formal waiver request. The request must: (1) be in writing, (2) identify the court in which the complaint was filed, (3) include a copy of the complaint, (4) include two copies of the waiver form prescribed by the civil rules, (5) include a prepaid way to return the form, and (6) inform the defendant of the consequences of waiving or not waiving service. Finally, the request must allow a defendant within the United States at least 30 days to return the waiver form, starting from the date on which the waiver request was sent.
In a federal civil case, what two documents must be served on the defendant to carry out service of process?
To carry out service of process in a federal civil case, the defendant must be served with both the summons and the complaint.
Amending
Under federal rules a party can amend any time within 21 days AFTER it is served. After that permission from the court is required or a written consent of the adverse party.
Motion for judgment not withstanding the verdict.
Unfavorable verdict
Personal Jurisdiction
When a summons or complaint is served on them.
Unless the court extends the time, how long does a plaintiff normally have to serve a defendant within the United States after the plaintiff files the complaint?
Within the United States, a plaintiff must normally serve a defendant within 90 days after filing the complaint. The court may extend this time on its own initiative or on a party's motion.
In a federal civil case, may a defendant be served in a foreign country using a method ordered by the federal court and not prohibited by international agreement?
Yes. A defendant may be served in a foreign country by following a method ordered by the court, if that method is not prohibited by an international agreement. This rule applies to service on individuals, corporations, partnerships, and associations.
In a federal civil case, may a defendant be served in a foreign country by following an international agreement regarding methods of service?
Yes. A defendant may be served in a foreign country by following any internationally agreed-upon method of service, if that method is reasonably calculated to provide notice. This rule applies to service on individuals, corporations, partnerships, and associations.
May a plaintiff ask a defendant to waive formal service of the summons?
Yes. A plaintiff may ask a defendant to waive formal service of the summons. The waiver process is designed to reduce the expense of service and to minimize service-related disputes.
Must a process server submit proof of service to the court?
Yes. A process server who is not a United States marshal or deputy marshal must submit an affidavit, or sworn statement, to the court to prove that service was made. However, failure to provide proof of service does not make the service invalid.
Is the plaintiff responsible for having the summons and complaint served on the defendant?
Yes. It is the plaintiff's responsibility to arrange for service of process on the defendant. Normally, the plaintiff is also responsible for paying the costs of service.
In general, if a defendant knows about the lawsuit before being served, must the plaintiff still carry out formal service?
Yes. Normally, a plaintiff must comply with the formal requirements for serving the defendant regardless of whether the defendant already knows of the lawsuit. In other words, a defendant's actual knowledge of a lawsuit is not a substitute for formal service of process. The courts' insistence on the formalities of service reflects the fundamental importance of service as a means of ensuring that the defendant receives due process of law.
The plaintiff sued an out-of-state corporation in federal court. The corporation had appointed a private litigation-services provider as its registered agent for service of process in the state in which the plaintiff filed suit. The plaintiff's process server was aware of the agency relationship between the defendant and the service provider. Nonetheless, the process server ignored the service provider and served the summons and complaint personally on the corporation's president while the president was visiting the state. Ignoring any issue of state-law methods of service, was service proper?
Yes. Service on a corporate officer is proper service on a corporation. The Federal Rules of Civil Procedure provide several methods for serving a corporation within the United States. These include service on a corporate officer, service on a managing or general agent, or service on the corporation's appointed agent for service. While the plaintiff is permitted to serve the appointed agent, the rules not require service on the agent if another method is available. Here, the corporation had appointed an agent to accept service of process in the state. However, the process server chose another permissible method of service by personally serving the corporation's president, who was a corporate officer. The server was not limited to using the designated agent for service. Therefore, service on the president constituted effective service on the corporation.
A plaintiff sued a defendant in the federal district court in the district of State A. The defendant lived in State B and worked at an office in State B. The plaintiff's process server went to the defendant's State B office and left the summons and complaint with the receptionist. The receptionist gave the documents to the defendant several hours later. Neither the Federal Rules of Civil Procedure nor the law of State A allowed service in this manner. The law of State B provided that a plaintiff may serve a defendant "by leaving the summons and complaint at the defendant's usual place of business with someone who works there." Assuming that this statute satisfies the requirements of due process, was the defendant properly served?
Yes. The defendant was properly served under State B law, as incorporated by the Federal Rules of Civil Procedure. A plaintiff may serve a defendant in a federal case using any of the methods permitted by the Federal Rules of Civil Procedure. Among these methods, the rules allow service on an individual in any manner authorized by (1) the law of the state in which the case is pending or (2) the law of the state in which service is made. In this case, the Federal Rules of Civil Procedure incorporate the service methods of State B, which is the state in which the defendant was served. State B law permitted service on a co-worker at the defendant's place of business, and the process server followed this procedure by leaving the summons and complaint with the receptionist at the defendant's office. Thus, the defendant was properly served.
10(c)
You may adopt statements made earlier in the same pleading or in an earlier pleading or motion by reference.
Rule 38 - Right to Jury Trial
[Best practice: demand jury trial in the complaint or in the answer/counterclaim]
A release in the context of settlement is
a document, signed usually by the plaintiff, releasing the defendant from liability
Production of electronic data may require the assistance of
a forensic software analyst
conflict of interest
a lawyer cannot represent more than 1 party w/ potentially conflicting interests. exception: gets clients to agree in writing after disclosing potential problems criminal is the only exception for contingency fee. Chinese wall: 2 lawyers in the same firm can represent clients with conflicts of interests. they need to get it into writing & not talk to the other lawyer about the case at all. confidentiality and attorney/cl privilege survives even after the relationship ends or death of client.
Memorandum of Points and authorities
a legal argument in the form of a discussion or analysis of the law that applies to the case
A structured settlement is
a payment over a period of years
Hearsay is the firsthand observation of
a person other than one testifying
Certiorari is
a petition for review by the supreme court
Affidavit
a statement, under penalty of perjury sworn before a notary or other person authorized to administer an oath.
Information exchanged in disclosure could include
a written statement of expert witness opinion
Removal of action to federal court is
accomplished by filing notice of removal in federal court
Rule 10 (a)
all pleadings must contain a caption which includes the name of the court, title of the action, the file number (except for the complaint) and a Rule 7(a) designation.
Voluntary arbitration
allows parties to set guidelines
Rule 8(d)(2)(3)
alternative and inconsistent claims/defenses are permissible within confines of Rule 11. —- > they need evidentiary support
Demand for jury trial should
always be included in the complaint
Subject Matter Jurisdiction
answers the question: does the court have power over the case? -rules are statutory (gov code) texas court levels: trial, appellate, supreme
In order for an item to be discoverable it must be relevant and
appear that it will lead to admissible evidence
Depositions vary from the scope of most other discovery devices because they
are not limited to the other party
It is best to prepare a settlement proposal
as early in the case as investigation and discovery will permit
A well-prepared settlement proposal usually
assists in the preparation for trial
Pretrial disclosure must be made
at least 30 days before trial
The Request to Produce Documents is signed by the
attorney
The final decision on document production methods is made by the
attorney
In answering interrogatories always
avoid distortion or misrepresentation
Most common way to serve a motion
by mail
In mediation the decision is made
by the clients
Inconsistencies in deposition testimony
can be used to impeach a witness
Demonstrative evidence
can clarify confusing data
The types of audiovisual aids used at trial
can substantially affect how the jury learns and retains information
During production, privileged documents should be
carefully identified
which court has power over the parties?
case law usually defines this
If the award requested in an action is a sum certain and the defendant is neither a minor nor incompetent, judgment shall be entered by the
clerk
The best person to contact to find out what documents are necessary to file a lawsuit is the
clerk of the specified court
A set of answers to interrogatories must be signed by the
client
Often the best source for determining the location of documents is the
client
The decision to accept settlement is made by the
client
A trial notebook
consists of most things an attorney will need at trial, organized for quick access and retrieval
Exhibits attached to complaints can include
contracts
grounds for the motion (in overland case)
court lacks subject matter jurisdiction because the parties are citizens of the same state
When reviewing technical documents, it is best to
create a glossary of technical terms raised in a particular case
Pleadings include
cross claims
Appeals
deal with questions of law only
Affirmative defenses are
defined by substantive law
A wherefore clause states the
demand for relief
An answer may contain
denials
Document titled "motion"
describes the nature, the grounds and the relief requested.
The federal court may limit the volume of discovery devices if the
discovery requested is too expensive for the opponent's resources
On appeal the paralegal cannot
divide the oral argument with the attorney
Initial disclosure eliminates the need for
early interrogatories
The production of documents and things is not the proper discovery device to gain access to
entry to land of a non-party
Rule 9(b)
establishes heightened pleading requirements for fraud and mistake a party must state with particularity the circumstances constituting fraud or mistake Ex. Who, What, Where, When, and How —> prevent frivolous suits
Judicial notice permits the introduction of
evidence without authentication
The nature of the motion (in overland case)
example: motion to dismiss
To have a hearing without notifying the opposing party is called
exparte
In federal court the notice of appeal is filed in the
federal district court
Self-authenticating evidence includes
federal documents
In responding to the complaint, the defendant may not
file a motion for a new trial
If answers to interrogatories are incomplete, the requesting party can
file a motion to compel
If answers to mandatory disclosure are incomplete, the requesting party can
file a motion to compel
Trial motions include a motion
for directed verdict
A motion asking that judgment be set aside because of procedural or other prejudicial error made by the judge at trial is a motion
for new trial
Pleadings are
formal documents that set out claims and defenses
As evidence, photographs may be
found to be prejudicial and not admitted
In preparing a diagram or chart for use in court, it is important to remember that
horizontal wording big enough to see from a distance is best
To be authenticated, physical evidence must be
identified as genuine
challenge of jurisdiction
if the defendant wants to challenge jurisdiction, they must file a special appearance motion. it needs to be filed before any other responses of filings
A witness may be impeached
if trial testimony deviates from the signed statement
Remittitur is a post-trial motion
in which the defendant asks the court to reduce a jury award
Alternative dispute resolution
is growing as an alternative to trial
Evidence that opposes your client's case
is helpful in preparing for trial
A motion for JNOV under Rule 50
is made after the jury has made its verdict
Justiciability
is the case ripe or moot? ripe- damages has happened (you can't sue for damages for a lawsuit over a law that has not taken effect yet b/c damages haven't happened) moot- the damage has happened and is settled (you can't sue a company for damages of a defective product if they have provided a replacement and no other harm still exists) roe v. wade: suing for right to have abortion but had baby before ruling was issued. plaintiff COULD be pregnant and face this dilemma again so the issue was not moot.
Pretrial Motions
issues that arise before the trial occurs. they relate to pleadings, the jurisdiction and venue of the court. or are ancillary to the primary relief.
Because searches in a full text computer system are done by key words
it is important to standardize key terms
If an arbitration decision was obtained by fraud
it may be appealed to the courts
If a test is likely to damage or destroy evidence
it should be recorded in photographs or on videotape
Grounds for a motion for a new trial include
judge's error
Statement of parties' domiciles is necessary in alleging
jurisdiction
Which of the following is the most difficult to successfully challenge on appeal?
jury fact-finding
An important paralegal task at the deposition is to
listen, observe, and take notes
statutory law solution
long arm statues , uses the standard "is the defendant doing business in the state of texas?"
determining amount of controversy
look at plaintiff's pleadings and read them in a charitable way -if there are multiple claims, add them -if there are multiple defendants, add them -if there are multiple plaintiffs, look at highest claim amount -if the issue is property look at fair market value
Calculating damages does not include
losses that occurred before the cause of action
Filing the complaint
marks the official beginning of the case in the federal system
To be admissible, evidence must be
material
Jury instructions
may be drafted in rough by the paralegal
ADR in North Carolina
may have a trial de novo
Permissive counterclaims
may include related claims
When an action is dismissed with prejudice, the action
may not be brought again
Lack of jurisdiction, improper venue, and insufficient service of process are all cause for
motions to dismiss
A report of the parties' planning meeting
must be filed within 14 days of the meeting
Motions
must be written, filed in court, served on the opposing attorneys (or parties if not represented)
Types of deposition digests include
narrative
A request for admission seeks to
narrow the issues for trial
Diagrams for purely illustrative purposes
need not be drawn to scale but must be a fair representation of what is depicted
In preparing a settlement precis or in discussions with the adverse party's attorney, the paralegal
needs to be cautious about revealing too much information
Motions during trial
not required to be filed or written
A party to be deposed must receive a
notice of deposition
Documents filed with a motion include the
notice of motion
According to ABA Formal Opinion 92-368, the attorney or paralegal receiving protected information inadvertently sent by the opposing party should
notify the opposing attorney
Judgment on the pleadings and summary judgment vary in that
only summary judgment is designed to reach behind the pleading to other evidence
The best evidence rule means that
only the original document or item is admissible
Who has the right to be present at the deposition
parties, attorneys, court reporter, videographer
The appellee is the
party who won at the trial
Federal and North Carolina Rule 37 covers
penalties for failure to disclose
A subpoena must be served by a
person of legal age
The plaintiff's settlement brochure should include the
personal history of plaintiff
Tire tracks at the scene of an accident are most likely to be
physical evidence
An example of an item unsuitable for interrogatories is the
physician's detailed account of an operation on plaintiff
venue
plaintiff chooses venue -place where cause of action occurred -defendant's county of residence or corporate office -plaintiff's county of residence or office if venue is proper it stands. defendant cannot file to transfer to a different proper venue unless: [Defendant can show they cant get a fair trial in chosen country] [motion to transfer due to an essential need-rarely approved-]
Rule 8(e)(1)
pleadings are to be construed so as to do justice
A paralegal may be responsible for
pointing out areas of witness examination missed by the attorney
The probative value of the evidence must outweigh
prejudice it causes
Mistakes made at trial that are sufficiently serious to affect the result against one of the parties are termed
prejudicial error.
A complaint does not
present defenses
Attorney's work product is
privileged
An order obtained by the court that prevents a party from obtaining specified information in discovery is called a
protective order
Federal rules require a party withholding privileged information to
provide identification of that information to the opposing party
The purpose of document production is to
provide the opponent an opportunity to review documents
Remedies that may be obtained by a party prior to a trial are callled
provisional remedies
The primary role of the paralegal in the settlement process is to
put information in a persuasive, presentable format
Answers to interrogatories should
put the client in the best possible light
Valid objections to interrogatories include that
question is too broad in scope such as too old
In the initial analysis, hearsay is inadmissible and is defined as
quote of what a declarant said to a witness
All evidence to be admissible must be
real, reliable, and relevant
The paralegal can assist in the selection of jurors at trial by
recording valuable information about each juror on the jury panel chart
relief requested in a motion
request that the courts dismiss the case
Depositions
require an oath
Ethics
rules are defined in TRPC - TEXAS RULES OF PROFESSIONAL CONDUCT
The defense
seldom prepares a settlement brochure
In state court, the person most likely to serve process is the
sheriff
When copying documents for production
staple copies if originals were stapled
Rules for mediation in North Carolina arise from
state statute and rules
Notice of removal should
state that all defendants have joined in the removal action
declaration
statement under penalty of perjury that certain facts are true or believed to be true.
Keeping the parties in the position as they presently exist at the beginning of a case is
status quo
Collateral Attack
subject matter jurisdiction of a case may be challenged at any time (even post judgment)
in preparing for trial it is best to
subpoena all witnesses needed to prove case
Rule 45 governs the use of
subpoenas
The complaint must always include
subscription
Except when the federal waiver of service is used, at the start of a civil lawsuit the defendant must be served with the
summons and warrant for arrest
Expert witnesses are best for presenting
technical evidence
When preparing witnesses for testimony
tell them to be truthful
A paralegal should avoid
telling the expert to impress the jury with his or her knowledge of the specific terminology in the field
The settlement brochure
tells the opposition that you are ready and will likely win
To be relevant, evidence must
tend to prove or refute a fact of consequence
A chain of custody establishes
that a piece of evidence is authentic
When speaking to a witness a paralegal should reveal
that he or she is a paralegal
In North Carolina the discovery schedule is established by
the clerk
If the deponent refuses to sign the deposition transcript, it is signed by
the court reporter
The person to be examined at a deposition is referred to as
the deponent
A source of information on a juror that the paralegal should avoid is
the juror
Documents filed in making a motion
the motion, the notice of hearing on the motion, affidavits in support of the motion, and a memorandum of points and authorities in support of the motion.
In drafting a caption, be sure to include
the name of the court
If documents are properly identified and indexed, locating them requires
the number of the document
A request for admission is a request for
the opponent's confirmation of the truthfulness and accuracy of facts, opinions, or the application of law to facts
Notice of Hearing on the motion
the part of a written motion that describes the nature of the motion being made and tells when and where a hearing on the motion will occur.
Voir dire
the process of selecting the jury panel
At the time of filing the action, paralegals should know
the type of service to be used and who needs to be served
If harmless error occurred at trial,
the verdict will stand
Arbitration is different from mediation in that
there is a decision by a third party
When prejudicial error is found by the appeals court then
there will be a new trial
Documents or photos may be introduced at depositions so that
they can be authenticated
In the movie Civil Action, please identify one offer by the defendant or defendants that was communicated to the plaintiff's attorney
they offered 8m in settlements
A complaint brought by a defendant against a previously named party is a
third-party complaint
If the plaintiff meets the requisite burden of proof at trial
this is called a prima facie
In preparing for a deposition a client should be told
to be truthful
A trial de novo is a
trial as if no previous hearing or arbitration has been held
minimum contacts rule
two parts to determine if a case has minimum contacts with the venue: what connection to state or forum does the company/defendant have? -purposeful availment -degree of organizational targeted marketing and business activity within the state -foreseeability of a lawsuit fair play and substantial justice-is suing them in this venue fair?
Interrogatories should be answered
under oath
How many sets of interrogatories may be sent in NC
unlimited
Notice pleading is
used in federal cases
An example of a question of fact is
was the road icy the day of the accident?
An example of a question of law is:
was the videotape prejudicial evidence?
Additur is
when the judge adds to the jury verdict
Standing
whether the plaintiff really suffered the wrong/harm in question does the plaintiff have a personal injury arising from a justiciable interest exception: associations have a standing if an individual member has standing to sue Political question: we cannot sue if we do not like the choices made by legislative or executive branch plaintiff's have no standing if it is about a ruling by a primary admin agency -ruling is governed by their rules -they have hearings -plaintiff can only go to court after exhausting admin hearings
In planning for a document production project, you need to consider
work space
