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Rules Enabling Act
- Rules of Procedure and Evidence; Power to Prescribe |
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Commencing an Action
- An action is commenced upon filing |
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| Commencement of Action by Service of Summons - Summons on Codefendant |
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| Attempted commencement of action by delivery of summons to Sheriff - Publication Following Attempt |
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| Change of Venue (Discretionary) |
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| Improper Venue to Begin With; Writ by Judge to Transfer to Proper Venue |
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Waiver of Service of Process
- 30 days to respond or 60 days if outside jurisdiction |
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Injunctions and Restraining Orders
(a) Preliminary Restraining Order (post bond) (keep status quo of claim)
(b) Temporary Restraining Order (ex parte; specific affidavit; post bond) (immediate relief)
(c) post bond |
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Consolidation of Separate Trial
(b) separate trials... must preserve right to jury trial |
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| Common Law Predecessor to FR 12(b)(1-5) |
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| Dilatory Pleas which challenge jurisdiction in some way |
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| Common Law Predecessor to FR 12(b)(6) |
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| Complaint - short and plain statement of the claim showing that plaintiff is entitled to relief |
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| all parties shall be given reasonable opportunity to present all material pertinent to motion; give notice to both parties |
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| Result of presenting matters outside pleadings may lead to conversion into summary judgment under FR 56 |
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Pleading Special Matters
(b) plead circumstances alleging fraud, mistake, condition of mind
(g) If an item of special damage is claimed, it must be specifically stated. |
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| Alternative statements of a claim or defense (cracked kettle cases) |
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| Alternative statements of a claim or defense (cracked kettle cases) |
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| a pleading must contain a demand for relief sought |
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demand for judgment; what each party is entitled
(jury may award amount greater than that demanded)
Default Judgment - cannot award unliquidated damages |
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| Trial Publicity; Lawyers are not permitted to make public comments designed to influence judge/jury |
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| Defendants Tools for Adjudication |
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12(b)(6) - failure to state a claim
12(c) - judgment on the pleadings
56 - summary judgment
50(a) - directed verdict (before jury)
50(b) - motion for judgment NOV or new trial (after jury) |
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| Plaintiff Tools for Adjudication |
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12c
56
50(a)
50(b)
12(b)(6) may used against counterclaim by defendant |
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| Time Limit to respond to a complaint - 21 days to respond |
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| Time limit to respond to a complaint - 30 days to respond |
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| What happens to FR 12(b)(1-5) if not raised in pleadings |
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| if not raised in pleadings, the tools are waived |
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| 19 affirmative defenses that must be specifically raised; not an exhaustive list; "logically flow" |
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| Pleading to be concise and direct |
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| Book of Genesis (Fed and SD) |
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FR 7(a) and SDCL 15-6-7(a)
- there shall be a complaint and an answer |
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| Amended and Supplemented Pleadings |
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| "relate back to the date of the original pleading" (same in SD) |
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| Notice pre-requisite to action for damages - time limit - 6 months or 180 days |
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| Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented |
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| a party may join as many claims as it has against an opposing party (as long as court has sub matter jurisdiction) |
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| Relief Sought in a Counterclaim |
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| Compulsory Counterclaim if claim arises out of the same transaction |
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| Crossclaim against coparty - "arise out of the same transaction) |
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Supplemental Jurisdiction
(Gibbs Test - Common Nucleus of Operative Fact) |
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| Real Party in Interest - claim must be prosecuted by a real party in interest (person entitled under subst law to enforce the right sued upon and who benefits from the final outcome) |
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Permissive Joinder of Parties (Two Prong Test)
1. right to relief arising out of same transaction
2. any question of law or fact common to all parties |
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| Required Joinder of Parties; Indispensable and Necessary |
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Third Party Practice (Impleader)
(a) when a defending party may bring in a third party
(1) timing of summons and complaint - 14 days after serving answer |
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| permitted to bring in a third party defendant within certain period of time - 14 days |
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| Two Ways of Interpleader in Federal Court |
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FR 22 - Interpleader - does not provide an independent basis for sub matter jurisdiction; need a reason for going to fed court
28 USC § 1335 - Interpleader - congressional remedy; minimal requirement of $500 or more; nationwide service of process |
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| Process and Procedure - nationwide service of process |
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Intervention by Right
1. Unconditional Right to intervene (Attorney General)
2. Impair of Impede outsiders interest |
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Permissive Intervention
1. Conferred by statute
2. Common question of law or fact |
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| Constitutional Challenge to Statute - Notice to Attorney General |
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| Depositions - Oral examination |
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| Deposition - Written questions |
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| Production of Documents/Things; Permission to Enter Land |
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| Physical and Mental Exams |
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Required Disclosures (3 stages)
1. Required Disclosures (within 120 days)
2. Expert Testimony (at least 90 days before trial)
3. Pre-Trial Disclosures (at least 30 days before trial; witnesses) |
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(A) substantial need/undue hardship (high burden)
(B) protect mental impressions, conclusions, opinions (protects attorney)
(C) witness may obtain copy of previous statement (protect witness) |
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Privileged Communications
example - attorney/client, interspousal, religious, counselor/student |
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| identify experts expected to testify; subject matter of testimony; substance of grounds for decision |
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Disclosure of Expert Testimony - required disclosures (90 days before trial)
- all opinions witnesses will express; facts or data; exhibits; witnesses qualifications; list of cases witness has testified in; compensation paid |
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| Protective Orders; protect parts of discovery |
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| Timing and Sequence of Discovery |
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| Which federal rule and SD rule covers discovery? |
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| Depositions by Oral Examination; Notice or Subpoena |
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| Party failure to attend own Depositions, serve answers to interrogatories, or respond to request for inspections |
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| Protecting a person subject to a subpoena |
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| Notice or subpoena direct to an organization - option by parties to name public or private corp. |
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| unless court states otherwise, deposition may be recorded by sound, sound and visual, or steno means, and party taking deposition shall bear costs |
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| Scope - an interrogatory is not objectionable b/c it asks for an opinion that relates to fact or application of law to fact |
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| Duty to Supplement - duty on party to update/supplement any information provided after request of interrogatory |
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| Dismissal of Actions - Voluntary Dismissal - as a matter of right, a party can voluntarily dismiss; can only be used once |
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| Dismiss for want of prosecution - 1 year, if no action, can be dismissed w/ or w/o prejudice |
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Right to Jury Trial; Demand - a party may demand a jury trial by:
1. serving the other parties with written demand within 14 days or else waived
2. filing demand in accordance with FR5(d) |
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| Trial by Jury or by Court - when no demand is made; discretionary by judge to determine if jury trial may be granted if no demand was made |
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| after case is removed to federal court - party does not need to demand jury trial again if demand was made previously |
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| Number of Jurors - at least 6, no more than 12 |
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| Impeachment of Jury Verdict |
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| set aside the findings; high burden; must show judge clearly erroneous |
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| lack of personal jurisdiction; common law predecessor to special appearance |
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| Failure to state a cause of action; demurrer is common law predecessor |
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| any person who is at least 18 years old and not a party may serve a summons and complaint |
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| service of process by any registered voter |
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| Waiving of Service of Process; 30 days after request is sent; 60 days to file answer to complaint |
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| serve personally or leave copy at dwelling house or abode with someone of suitable age and discretion who lives there |
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| 120 days for service of process ofter complaint was filed |
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| magistrate judge + claim of $12,000 |
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| Declaratory Judgment Acts |
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Supplemental Jurisdiction
(a) such supplemental jurisdiction shall include joinder of parties (Gibbs Test)
(b) punish plaintiff in diversity cases
(d) if not allowed in federal court; must be refiled in state court within 30 days |
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Removal of Civil Actions
(a) if lawsuit filed could have been filed in fed court; it is removable |
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Federal Venue Generally
(b)(1) where all defendants reside; (2) where a substantial part of the claim arose
(c)(1) alien lawfully admitted, where domiciled; (2) corporation where it has minimal contacts; (3) any defendant not residing in the U.S. may be sued anywhere |
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