1 / 29

CIVIL PROCEDURE 2002

CIVIL PROCEDURE 2002. Class 8 September 13, 2002 Professor Fischer. Wrap-Up of Last Class.

turner
Download Presentation

CIVIL PROCEDURE 2002

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. CIVIL PROCEDURE 2002 Class 8 September 13, 2002 Professor Fischer

  2. Wrap-Up of Last Class • We studied the requirements for service of process under FRCP 4: who may serve (4(c )), what documents? (4(c )), how to serve individuals (4(e)), how to serve corporations (4(h)), when must you serve? (4(m))?

  3. What Will We Learn Today? • Wrap-up of last class • Procedure for waiver of service under FRCP 4(d); incentives for waiving service • Pre-answer motions under Rule 12(b). We will focus on motion to discuss for failure to state a claim (12(b)(6)) and motion for a more definite statement (12(e)) • Pleading requirements for fraud claims (9(b))

  4. HYPO • Jane, the owner of a Ford Explorer that rolled over in an accident, wants to bring a products liability lawsuit against the Ford Motor Company. She files a complaint in U.S. District Court for the Eastern District of Michigan. Can she properly serve the complaint by mailing it to Ford Motor Company headquarters in Dearborn, Michigan? • Can she properly serve by delivering the complaint to William C. Ford, Ford’s chairman?

  5. WAIVER OF SERVICE • What’s waiver of service? • What provision of the FRCP governs waiver of service?

  6. WAIVER OF SERVICE • Waiver is a way of notifying the D of the action while waiving formal service • It’s part of the ‘how’ question • The governing provision is FRCP 4(d). You should be familiar with it. • 2 important questions: (1) HOW do you waive? (2) WHY waive service?

  7. WAIVER OF SERVICE RULE 4(d): HOW • HOW DOES P REQUEST A WAIVER OF SERVICE?

  8. WAIVER OF SERVICE RULE 4(d): HOW • HOW DOES P REQUEST A WAIVER OF SERVICE? • P sends D by “reliable means” copy complaint, 2 copies of a notice & request for waiver form containing specified information about the action and date of waiver request/due date for waiver (must be at least 30 days if D in US);a request that the D waive formal service of the summons and complaint upon him; prepaid means to respond. If D returns the request, that waives formal service. • See forms in online FRCP at http://www.law.cornell.edu/rules/frcp/overview.htm

  9. INCENTIVES TO WAIVE SERVICE: THE WHY • The FRCP contain some incentives for individuals and corporations to waive service. What are these?

  10. INCENTIVES TO WAIVE SERVICE: THE WHY • 1. Duty on D to avoid unnecessary costs of service (4(d)(2)) • 2. Costs of serving D can be imposed on D if refuses to waive w/o good cause (4(d)(2) and 4(d)(5)) • 3. If D waives, she has additional time to answer (60 days after date waiver request sent if D is in the U.S.) (4(d)(3) and 12(a))

  11. PROOF OF SERVICE • What is proof of service? • Which provision of the FRCP governs proof of service? • Is it required if service is waived?

  12. PROOF OF SERVICE • What is proof of service? Proof to the court, usually by affidavit of the process server, that service has been effected. Failure to do so doesn’t invalidate service. • Which provision of the FRCP governs proof of service? Rule 4(l) • Is it required if service is waived? No. See 4(d)(4) • For a proof of service form for the U.S. District Court for the Central District of California, see: http://www.cacd.uscourts.gov/cacd/forms.nsf/0b2b50f03ce1d589882567c80058610a/8f448f69c6703589882568190072f625/$FILE/Cv-01.pdf

  13. RELATIONSHIP OF JURISDICTION & VENUE TO SERVICE • Even if D has been validly served under FRCP 4, the court cannot hear the action unless it has personal jurisdiction over the D, subject matter jurisdiction over the dispute and proper venue • The attorney should consider the issue of jurisdiction and venue before serving a D, but we’ll learn about these requirements later.

  14. SUMMARY OF FEDERAL REQUIREMENTS FOR SERVICE OF PROCESS • You should know: • 1. What service of process is, and what is the purpose for service. • 2. Requirements for TIME, DOCUMENTS, IDENTITY OF PROCESS SERVER, MANNER OF SERVICE for individuals and corporations and WAIVER OF SERVICE

  15. Procedure After service of process • What should the defendant do after being served with process or waiving service of process?

  16. After service of process • 1. Check time limits for answer • 2. Decide whether to make a pre-answer motion (e.g. 12(b)(6), 12(e)) • 3. If no motion will be made, determine whether you need an extension of time to answer. If so, try to get P’s consent, but still safest to move the court to grant an extension. Usually courts are reasonable about this.

  17. What’s a Motion? • What provision of the FRCP governs motions in general?

  18. What’s a Motion? • A motion is an application to the court for an order • What provision of the FRCP governs motions in general? Rule 7(b)

  19. Requirements for Motions • Motions must be made in writing unless presented in hearing/trial (formal requirements set out in FRCP 10) 7(b)(1) and (2) • Must set out the grounds for the motion and what order is sought (FRCP 7(b)(1)) • Motions must be signed by party’s lawyer or unrepresented party (FRCP 7(b)(3), 11). Pleadings also have to be signed., • Usually motions include: notice of motion, legal memorandum (brief) and supporting exhibit(s) and/or affidavit(s) • READ 7(b) for next class

  20. Importance of Local Rules/Judges Rules • It is very important to check both local district court rules and individual judge’s rules governing motion practice. • For an example, see Local Rules for the U.S. District Court for the Southern/Eastern District of New York at: http://www.nysd.uscourts.gov/rules/rules.htm and see judges page at: http://www.nysd.uscourts.gov/judges.htm (for individual practices of each judge, click on individual judge’s name)

  21. Questions for Pre-answer motions • When can you make a pre-answer motion? • What possible pre-answer motions can be made? • What is the burden of proof required to succeed on a pre-answer motion?

  22. Bower v. Weisman (CB p. 210) • The parties: • Sachiko Bower • Frederick Weisman • Who is the plaintiff? Defendant? What court are we in?

  23. Bower v. Weisman • What procedural state has this action reached? • What is the substantive law dispute in this action?

  24. Bower v. Weisman • What legal arguments does Weisman make in support of his pre-answer motions?

  25. Bower v. Weisman • What legal arguments does Weisman make? • 1. Weisman is entitled to a more definite statement under Rule 12(e) of specific provisions of agreement and also which D is charged with which act • 2. Bower’s claim for fraud, mispresentation and deceit should be dismissed under 9(b) • 3. Bower’s claim for trespass, false imprisonment, intentional infliction of emotional distress and private nuisance should be dismissed under Rule 12(b)(6) for failure to state a cause of action

  26. Bower v. Weisman • What legal arguments does Bower make?

  27. Bower v. Weisman • How does Judge Sweet rule on the 12(e) motion? What is his legal reasoning?

  28. Bower v. Weisman • How does Judge Sweet rule on the 9(b) motion? What is his legal reasoning?

  29. Bower v. Weisman • How does Judge Sweet rule on the 12(b)(6)motion? What is his legal reasoning?

More Related