Term
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Definition
| Commencing an action- A civil action is commenced by filing a complaint with the court. |
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Term
| Rule 4- what does it deal with? |
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Definition
| Rule 4 deals with a Summons |
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Term
| According to Rule 4 who may serve a summons? |
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Definition
1) Anyone who is over 18 years old.
2)By a court's marshall or other person duly appointed by the court. |
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Term
According to Rule four, how may service be waived?
How much time is given to the defendant to waive a service request? |
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Definition
To save costs, the plaintiff may request the defendant to waive service. If so, a written notice must be sent.
The defendant has 30 days to respond to a waiver requestion if he is in the US and 60 days if he is outside of the US.
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Term
Under Rule 4, how many days does the defendant have to respond to the complain if he accepts a aiver of service?
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Definition
| The defendnat has 60 days to respond to the complaint after the waiver is sent if he is within the US and 90 days if he is out side of the US. |
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Term
| Is proof of service required when the plaint files the waiver? |
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Definition
| No, proof of service is not required when the plaintiff files the waive. |
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Term
| Does waiving service waive any objection to jurisdiction or venue? |
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Definition
| No, waiving service does not waiver any objection to jurisdiction/venue |
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Term
| Under Rule 4 what is proof or service? |
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Definition
| It is an affidavit required by the person who served it unless waiver of service is obtained |
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Term
| Under Rule 4, is an affidavit required when service is done by the US Marshal or Deputy Marshal? |
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Definition
| An Affidavit is not required when serviced is doen by the US Marshal or Deputy Marshal |
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Term
Under rule 4, when must service be done?
What can happen if it is not done within this time limit?
How can the palintiff get around this? |
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Definition
| Service must be done within 120 days of the complaint. If not, the court can dismiss the action without prejudice if the plaintiff has not shown good cause for the delay. |
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Term
| What does rule 5 deal with? |
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Definition
| Rule 5 deals with serving of pleadings. |
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Term
What must be served?
Where else must it be filed?
What is an exception to this? |
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Definition
Any form of pleadings, discovery papers, written motions, notices, an order (as required by the court) must be served upon the parties and filed with the court.
One exception to this is discovery documents do not need to be filed with the court. |
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Term
Under Rule 5, what are the acceptable forms of service for pleadings?
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Definition
| (attorney, if represented; deliver by hand personally, home office, mailing on the last known address, or leave it with the clerk of court i no address is known, or electornic means if consented to by parties. |
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Term
What does Rule 5.2 deal with?
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Definition
| Rule 5.2 deals with the protection of privacy |
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Term
Under Rule 5.2, what kind of information may be redacted?
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Definition
Redaction of private information such as full SSN; full Date of Birth; a minors full name; and financial information.
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Term
| What are exceptions for redaction under rule 5.2? |
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Definition
1) Financial account number that identifies property in a forfeiture proceeding
2) Record of an administrative or agency proceeding
3) official record of a state-court proceeding
4) record of a cour or tribunal if that record was not subject to the redaction requirement when originally filed.
5)a pro se filing in an action brought under 28 § 2241, 2254, or 2255 |
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Term
| What happens if filings are made under seal? |
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Definition
| Filings can be made under seal, but no information is redacted. The court may order this done but it may also unseal the filing or order a redacted form be filed. |
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Term
| Protective orders under rule 5 |
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Definition
| The court may by order require redaction of additional information or prohibit a nonparty's remote elctronic access to a document filed with the court. |
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Term
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Definition
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Term
| Under Rule 6, how should time be computed? |
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Definition
1) Exclude the day of the event that triggers the period (unless period stated in hours)
2) count all days
3) include last day of the period, but if hte last day is a weekend or a holidy, then the period continues to run until the next regulard day.
*The last two rules apply when period is stated in hours (count by hours not days). |
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Term
| Under rule 6, how is last day defined? |
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Definition
| "Last day" is defined as midnight for electronic filings and at the time the clerk's office is closed for theday for hand/mail filings. |
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Term
| Under rule 6, how is next day defined? |
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Definition
| Next day is defined a counting forward when the period is measured AFTER the event and counting backward if the period is measured before the event. |
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Term
Jurisdiction: general definition and types.
What kinds must a court have to decide a case?
What are the jurisidictional requirements for a valid judgement? |
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Definition
1) the power of a court to adjudicate cases and issue orders
2) subject matter, personal, territorial
To decide a case, the court must have subject AND either personal or territorial.
Subject matter, personal/territorial AND adequate notice are 3 fundmental requirements for a valid judgment |
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Term
| What kind of jurisdiction do state courts have? |
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Definition
- State courts have general jurisdiction, meaning that they can hear any
controversy except those prohibited by state law |
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Term
| What kind of jurisdiction do federal courts have? |
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Definition
Federal courts have limited jurisdiction in that they can only hear cases that fall
both within the scope defined by the Constitution in Article III Section 2 and
Congressional statutes (See 28 U.S.C. Sections 1251, 1253, 1331, 1332. |
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Term
| How is state cour territorial jurisdiction determined? |
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Definition
State court territorial jurisdiction is determined by the Due Process Clause of
the Constitution's 14th Amendment (Section 1) and the federal court territorial
jurisdiction is determined by the Due Process Clause of the Constitution's 5th
Amendment. |
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Term
| What is subject matter jurisdiction? |
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Definition
Subject matter is the authority of the court to hear a case relating to a specific subject matter.
(i.e. family court, bankruptcy court, and criminal court, etc.) |
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Term
| What is Personal Jurisdiction? |
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Definition
| Personal jurisdiction is the authority of the court to render a judgment against a particular defendant. |
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Term
| What is Territorial jurisdiction? |
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Definition
| Territorial jurisdiction is the authority of the court to render a judgment regarding events which occured wtihin a defined territory |
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Term
| What kinds of jurisdiction be waived? |
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Definition
Subject matter jurisdiction cannot be waived, but personal and territorial can be.
If the court did not have subject matter jurisdiction on a case, the ruling is null |
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Term
What is venue?
What is it generally based on?
Is there a constitutional requirement for it?
Can it be waived by parties? |
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Definition
Venue means the locality of the law suit.
Generally venu is based on where a matter occured or where the defendant resides
There is no consitutaional reuirement for proper venue in order to have a valid judgment, unlike subject matter/ personal jurisdiction.
Venue can be waived by parties. |
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Term
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Definition
1) Preamble
2) Parties
3) Jurisdiction & Venue
4) Cause of Action/Facts
5) Counts
6) Paryer for Relief (money, damages, declaratory judgment, or injuctive relief)
7) Jury Demand (If want a jury)
8) Signautre
9) Summons |
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Term
| What did Bell Atlantic v. Twombly (Supreme Court case from 2007) do? |
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Definition
In it the supreme court applied a stricter stand for complaints.
The case requires that a complaint must allege "enough facts to state a claim to relief that is plausible on its face" |
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