PLEADINGS

1. Introduction to Pleadings
a. Definition:
i. Papers filed by the parties at the beginning of the action, in which they set forth their positions as to the facts at issue.

b. Purpose
i. ii. iii. iv. Provide Notice to the Defendant (what is the case about) Weed out baseless Claims (is the claim valid or not) Exchange factual contentions (what is the dispute about) Narrow the issue

c. Must have proper form (Rule 10):

i. Must have: Caption and Names of Parties Rule 10(a) 1. Court name 2. Case name (by partys name) 3. Docket number 4. Identity of the document ii. Must have: Paragraphs and separate statements Rule 10(b) 1. Numbered paragraphs 2. Each paragraph w/ single set of circumstances 3. Each separate claim in separate count or defense a. Need separate courts when the claims are founded on separate transactions. iii. May have: Adoption by Reference and Exhibits Rule 10(c) 1. You do not have to reiterate common material that has already been said

2. Introduction to the Complaint

a. Must have why is there a claim (Rule 8(a)):
i. Rule 8(a)(1): Short and plain statement of the grounds for the courts jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support 1. Statement of the ground for the courts subject matter jurisdiction 2. State why you are in federal court instead of state court 3. Only 3 types available: federal question, $75+, diversity ii. Rule 8(a)(2): Short and plain statement of the claim showing that the pleader is entitled to relief. (Two Main Questions) 1. Note: Peterson says: Whats minimally required is almost never optimal. 2. Does the law provide a remedy for this claim? (Legal Sufficiency) a. If not, during pleading stage it can be dismissed by 12(b)(6) aka Failure to state a Claim i. If P proved everything she alleged in the complaint, would the law provide a remedy? 1. If not, court will usually dismiss w/ leave to amend or without prejudice. 2. The court does NOT look at other factual evidence. b. If not, after pleadings stage, can be dismissed by 54 aka summary judgment i. Filed if P or D believe that evidence shows no dispute as to factual issues. 3. Is there sufficient detail? (Factual Sufficiency) a. Liberal Minimum Standard i. Statement of the claim(s) that is enough for a judge to reasonable infer that pleader is entitled to some kind of relief. ii. Simple requirement so people have ability to prove their claim. iii. Purpose is to give D fair notice of the claims and the grounds on which they stand. b. Conundrum: Bell Atlantic Corp. v. Twombly (p. 298) SCOTUS i. Facts: Court said the complaint was too speculative and was insufficient to state a claim b/c it didnt have enough facts, including NO date. ii. Uncertainty of application 1. Just to antitrust cases? 2. It is uncertain whether this is going to be applied to just antitrust cases or all cases. 3. Court does not tell us! 4. Lower courts have applied it in various ways. iii. Generally: How to apply to pleadings 1. Make sure the pleading is substantively sufficient (remedy and right)

a. Does the complaint adequately set forth all the elements of sub. law which the claim is based on? 2. Factual allegations must be plausible enough to raise a right of relief above the speculative level 3. A date is important in showing specifics iv. Specifically: How to apply to antitrust case 1. Complaint must have enough factual matter to suggest that an agreement was made (not just circumstantial evidence) a. An allegation of parallel conduct and a bare assertion of conspiracy is NOT enough i. Without more, doesnt suggest conspiracy ii. Must show there was a meeting of the minds or an independent allegation 2. You will have to plead less! if Twombly would not have plead the parallel conduct would not have been held up to back up that claim. 3. A date is important in showing specifics v. Petersons opinion of Twombly: 1. It will be limited in some significant way in the future b/c of the impossibility of applying it to a broader sense. 2. Impossible to require that level of detail 3. May just apply antitrust or complex litigation 4. A month after this they said specific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds upon which it rests. vi. Policy Issues 1. Economic Efficiency a. Will weigh the litigation costs v. value analysis (error costs) i. Litigation costs: The cost of letting a case with no merit go forward ii. Value Analysis (error costs): Not allowing a potentially valid claim to go forward 2. THUS, the court in Twombly makes a decision that the litigation costs of letting the case go forward exceed the possible error costs.

iii. Rule 8(a)(3): A demand for the relief sought, which may include relief in the alternative or different types of relief i.e. what type of relief 1. What P wants to recover 2. P may recover more than she asks for 3. Does not have to be a specific amount a. Can be shown at trial b. There is nothing improper about alleging that the matter in controversy exceeds $75,000 for jurisdictional purposes and making a demand to be shown at trial 4. Types of relief: a. Monetary Damages b. Injunctive Relief c. Specific performance

3. Pleading Inconsistent Facts and Theories

a. Generally / Reasons Why:
i. Under common law you had to pick one, now you dont. ii. May be pleaded by P or D iii. Put in all the possibilities in one suit so that the jury can figure out who is responsible. iv. Saves money v. Let defendants duke it out vi. Avoids empty chair syndrome 1. You dont want the jury to think that the person responsible is not in the room 2. Looks to the jury that they are just choosing who is liable vii. MUST be in good faith.

b. Pleading Special Matters - Rule 8 (d)

i. Rule 8(d)(2) Alternative Statements of a Claim or Defense 1. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count of defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. ii. Rule 8(d)(3) Inconsistent Claims or Defenses 1. A party may state as many separate claims or defenses as it has, regardless of consistency. iii. McCormick v. Kopmann (p. 317) 1. P sued to recover for husbands death not sure what happened so she made contradictory claims in her complaint. 2. However, she did so in good faith so court allowed it and said she was entitled to have all evidence submitted to the trier of fact. 3. Illinois law had a Civil Practice Act that was based off Rule 8(d)(2) and (3)

4. Example of good faith 5. Plaintiff need not guess which claim will prevail.

c. Voluntary Dismissal Rule 41(a)

i. Plaintiff may dismiss case at any time ii. These are without prejudice unless stated otherwise by parties or court iii. Requires court order 1. EXCEPTION Without Court Order if: a. Notice of dismissal is before answer or summary judgment motion ORb. Stipulation of dismissal signed by all parties c. This is without prejudice unless it states otherwise. i. Exception: If P previously dismissed another action based on same claims, this notice serves as an adjudication on the merits iv. With Prejudice 1. This is final, binding, valid, and on the merits, therefore you will be barred from bringing that claim again. 2. If plaintiff moves to dismiss too far down the line in proceedings, the court may dismiss with prejudice. v. Without Prejudice 1. Without claim preclusion not forbidden from bringing it again. 2. You get a dismissal without prejudice: before an answer, or before summary judgment, or with the stipulation of the parties. 3. You could also try and persuade the court based on the equities of the case. If its fair for the court to say, ok, you can go away and start again

vi. Court looks at several factors to decide if with prejudice or without prejudice 1. Prejudice to be suffered by defendant if plaintiff refiles the action 2. Delay in proceedings 3. Lack of diligence by the plaintiff 4. Extent to which the case has progressed 5. Adequacy of the plaintiffs explanation for the need to dismiss

d. Involuntary Dismissal Rule 41(b)

i. Can result from: 1. Failure to prosecute your case (if you are ignoring things) a. Link v. Wabash R. Co. (p. 323) i. Leading case in involuntary dismissal ii. Case lingered on, plaintiff asked for many extensions, and finally failed to show up to pretrial conference. iii. Court dismissed for failure of the plaintiffs counsel to appear at the pretrial for failure to prosecute the action 2. Failure to follow rules or court order ii. Almost never happens because of scheduling orders so you would already have penalties against you for failing to work with schedule. iii. Providing warning and opportunity to be heard is the preferred course

4. Responding to the Complaint

a. Two options in responding:
i. Motion against the Complaint 1. Defenses by Motion (how to present defenses) Rule 12(b) 17 a. (1) Lack of jurisdiction over the subject matter i. This can be raised anytime b. (2) Lack of personal jurisdiction i. Can be waived if you dont object right away (per Rule 12(h)) ii. A defendant who objects to PJ can raise other defenses at the same time iii. PJ objection can be raised in the answer c. (3) Improper venue i. Only pre-answer ii. Can be waived if you dont object right away (per Rule 12(h)) d. (4) Insufficiency of process i. Only pre-answer ii. Can be waived if you dont object right away (per Rule 12(h)) e. (5) Insufficiency of service of process i. Only pre-answer ii. Not fatal needs to be fixed before case proceeds

iii. Can be waived if you dont object right away (per Rule 12(h)) f. (6) Failure to state a claim upon which relief may be granted i. Serves 2 functions: 1. Tests legal sufficiency of Ps claim, questions whether the law accords a remedy on the facts 2. Tests factual, or formal, sufficiency of the complaint, questions whether P has set forth a claim in appropriate detail. ii. Asking the court to rule before the answer iii. The motion asserts that on the facts as pleaded by P, no recovery is possible under any legal theory. iv. Ex: Ps complaint is barred by the statute of limitations v. Suggestion that because the pleading requirements of Rule 8 are so limited you will never get 12(6) ruling. vi. P is able to amend g. (7) Failure to join a necessary party under Rule 19 i. This can be raised anytime. ii. If an absentee cannot be joined (would destroy diversity) the court will decide if the case can proceed without the absentee, dismissing only if the absentee is indispensible 2. Motion for judgment on the Pleadings Rule 12(c) a. Asking the court to rule after the answer (or all pleadings allowed) b. Only difference between 12(c) and 56 (summary judgment) is that you can add new facts in summary judgment motion in 12(c) you cannot. Asking the court to rule at trial is matter of law. 3. Motion for a More Definitive Statement Rule 12(e) a. If the complaint is so "vague or ambiguous that [the defendant] cannot reasonably be required to frame a responsive pleading 4. Motion to Strike Rule 12(f) a. If P has included "redundant, immaterial, impertinent or scandalous" material in the complaint 5. If motion is denied, D has 10 days to answer 6. Note: the court must assume that all the facts in Ps complaint are true. ii. Answer the Complaint 1. Generally three options: a. Challenge the law the law is unenforceable for some reason b. Challenge the facts the facts are wrong (factual defense) c. Add new facts other facts prove D not liable (ex. brake failure w/o warning) 2. Admissions

a. Many allegations that D will admit facts not in dispute b. Ex: allegations of citizenship, that parties entered into a contract c. Pleadings serve to establish undisputed facts 3. Denials Rule 8(b) a. Deceptively simple area; you can fall into various pitfalls if you do not deny in good faith! b. Allegations not denied are deemed admitted c. General denial i. Deny all the allegations ii. Very short pleading iii. Rarely done iv. Problem is you can ONLY file this if you literally denial every part of the complaint (including jurisdictional arguments), if you do it and its not real you can be stricken with a bad faith denial and you can face sanctions. v. Zielinski v. Philadelphia Piers (handout): 1. There was severe undoable prejudice to the plaintiff: a. Bad answer b. Prejudice to plaintiff c. False statement by defendant d. No harm to defendant 2. Petersons guess is that the top 3 reasons would be enough to make a holding. 3. D's answer contained a general denial of this paragraph, but b/c D did not contest P's injury or the fact of the collision, it should have made a specific denial so the general denial was ineffective. D wasnt permitted to amend answer to include a more specific denial, since the limitations period as to the 3rd party had already passed. 4. Court agreed to instruct jury that D admitted operator of forklift which injured P was D's agent. D's general denial of was ineffective, since same paragraph contained other allegations D did not contest. d. Specific denial i. Deny all of the allegations of a particular paragraph or count of the complaint. e. Qualified general denial i. D admits the allegations of paragraph 5 of the complaint, and denies each and every other allegation of the complaint. f. Denial of knowledge or information (DKI): i. D may make a denial of knowledge or information (DKI), by which he says that he does not have enough knowledge or information sufficient to form

a belief as to the truth of Ps complaint (but D must do this in good faith). ii. Cannot be used if D has reasonable access to the info or if its a matter of public record. g. Potential Problems with Denials: i. Conjunctive Denial 1. When D is faced w/ a long complaint separate the denials ii. Improper / Bad faith denial iii. Argumentative Denial 1. An answer that neither admits of denies allegations but demands proof of the Ps claims at trial is worthless b/c such an answer doesnt deny anything and all allegations are deemed admitted. 2. Counsel should resist the temptation to plead contrary facts a. Rule 8(b)(2) requires denial must fairly respond to substance of the allegation b. Ex: I was in Boston, not in SF iv. Negative Pregnant 1. Can result from a denial that is too literal pregnant with the admission. 4. Affirmative Defenses Rule 8(c) a. Must be explicitly pleaded b. Inject new matter into the dispute new legal allegations c. List includes: fraud, res judicata, statute of frauds, etc. 5. Claims by Defendant (in detail later) a. Counterclaim b. Cross-claim 6. Note: Best to respond to each paragraph of the complaint individually

b. Timing Rule 12 (a)(1)

i. You have 20 days after service of summons or complaint to respond either by filing a motion or filing an answer. ORii. If D has waives service of process then 60 days ORiii. The Judge can grant an extension 1. Judge can deny it even if P agrees to it. iv. D can request more time to answer the complaint from P 1. How to decide when to be lenient with opposing counsel? a. Consult with client b. Think about situations that may come up in the future. c. You dont trade off your interests for your clients interests. d. Take into account previous relationships with the attorneys advantages to keep good relations with opposing counsel.

c. Failure to Respond: Default / Default Judgment

i. This does not automatically happen, D must go to the court.

ii. Two stages: 1. Default 55(a) a. When defendant fails to answer the complaint on time, the plaintiff goes to the clerk (entry of default) b. Simply a notation on docket that D failed to plead/respond c. P cannot get money or relief just based on this 2. Default Judgment - Two ways to ENFORCE Rule 55(b) a. By the Clerk Rule 55(b)(1) i. The clerk can only enter it if its for a defined amount. b. By the Court Rule 55(b)(2) i. If its for an undefined amount you must ask the judge ii. Going to ask to seize assets. iii. How you get this depends on the nature of your damages. iv. Plaintiff has no right to default judgment; court has discretion v. The judge can decide NOT to enter a judgment, but most likely they will at least have a hearing on damages. vi. Judge cannot award more, but can award less iii. Once a judgment of default has been entered, you go to Rule 60(b) 1. Hard to obtain 2. Requires excusable neglect 3. Discretion of the court to give 4. D must convince court a. Not guilty of culpable conduct b. Has meritorious defense c. Reopening the case would not prejudice plaintiff

5. Amendments and Supplemental Pleading

a. Generally:
i. This is how to fix mistakes during the pleading stage ii. Amendments happen all the time iii. Old system never allowed amendments, but now we allow them readily/liberally iv. Courts would rather decide controversies on the merits than on technicalities, so courts have allowed amendments liberally v. If amendment occurs, must be treated in all respects as if raised in the pleadings

b. Rule 15(a) Amendments Before Trial

i. Can Amend ONCE as a Matter of Course (Rule 15(a)(1)) 1. Can do this without court approval and without a motion. 2. Before being served with a responsive pleading (like an answer) ORa. Remember, a motion to dismiss is not a responsive pleading b. This applies even if D gets an extension to answer 3. If no response is needed, within 20 days. (Usually applies to answers) ii. Other Amendments Must have Court or Partys Permission (Rule 15(a)(2)) 1. After this brief period you may amended with opposing parties consent or the courts leave: when justice so requires. 2. Use factors to analyze if a late amendment should be granted or not: a. Need of party to amend taking into account b. If the amendment asserts a sufficient claim: i. Upon which relief can be granted ii. Allowed by SOL c. Any needless delays d. Prejudice to the other party taking into account e. Ways to mitigate the prejudice f. Bad faith g. Failure to cure problems w/ previous amendments h. Loss of evidence. 3. Does not limit the time in which one can seek leave to amend. a. But the longer one waits to ask, the more likely the other side can claim prejudice. iii. Time to Respond to an amended pleading (Rule 15(a)(3)) 1. Must be made within the time remaining to respond to the original pleading or within 10 days after service of the amended pleading

c. Rule 15(b) Amendments During and After Trial

i. Purpose is to present evidence on point not covered in pleadings ii. If during trial, P raises issues not in the pleadings, the D can: 1. Object: a. If party does object, court could allow if it will aid in presenting the merits and wouldnt prejudice party 2. Not object: a. Express consent Party says outright say its okay. b. Implied consent If Party stays silent, his consent is implied and the issue becomes available for judgment. (or if he argues it) i. This is a malpractice trap!! ii. Example: divorce about the custody of children. The other side should object to any issues regarding finances because its irrelevant and the judge would uphold your objection. If you didnt object, and let all the evidence about financial need

in the case, then the party will and can use it and argue, for example, for alimony.

d. Rule 15(c) When an Amendment Relates Back

i. When the statute of limitations allows relation back; (Rule 15(c)(1)(A)) 1. If state SOL applies, then relation back is governed by state rules ii. When the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out or attempted to be set out in the original pleading; (Rule 15(c)(1)(B)) OR1. Amendment can only flesh out details, change legal theory, or add another claim arising out of the same transaction. 2. Problem court doesnt tell us what this means too much. 3. Marsh v. Coleman Co. pg. 338 a. deals with the tension between goals of statute of limitations and goals of liberal amending b. The plaintiffs promissory fraud claims regarding employment agreement are based on conduct substantially different in kind and time from that alleged in the plaintiffs original complaint. c. Court takes too narrow of a perspective here (Peterson) iii. Rule 15(c)(1)(C) Amend to charge/add a party after SOL runs out 1. Only if three requirements are met: a. The amendment covers the "same transaction or occurrence" as the original pleading (the same rules discussed above); - ANDb. If within 120 days after filing the complaint the party to be brought in: i. Received actual notice of the action that she will not be prejudice in maintaining her defense -ANDii. Knew or should have known that the action would have been brought against her, but for a mistake concerning the proper partys identity. 2. Note: This usually happens in corporate cases, very narrow application that overrides the statute of limitations.

e. Rule 15(d) Supplemental Pleadings

i. Sets forth events occurring after a pleading is filed. 1. Doesnt include facts that occurred before pleading but were discovered later. ii. Update the dispute by bringing new facts to the attention of the court, even if they change the relief sought or add additional parties. iii. Only allowed with the courts permission. No such thing as right of supplementation. iv. Courts freely grant unless there is undue delay, prejudice, or bad faith.

6. Integrity and Sanctions in Pleading - Rule 11

a. Generally:
i. Applies to every pleading, motion, paper, and argument given to the court ii. Court has held that that a district court can impose Rule 11 sanctions: 1. even after the plaintiff had voluntarily dismissed the suit. Voluntary dismissal neither cured nor deprived the court of jurisdiction to impose sanctions. 2. even if the court is later determined to be without SMJ. iii. Does not apply to discovery (Rules 26-37) Rule 11(d)

b. Signature Rule 11(a)

i. Required by at least one attorney ii. Needs to be on every pleading and motion

c. Representations to the Court Rule 11(b)

i. Rule 11(b)(1) not presented to harass, cause delay, or increase costs ii. Rule 11(b)(2) claims and defenses are warranted by existing law or by a nonfrivolous argument for establishing new law. 1. There must be room for new theories critic of Rule 11 (Peterson) 2. You can bring claim even if other courts have ruled against a similar claim to yours b/c, (a) they could have been wrong and (b) you have a good case 3. You must mention if theres a case not in agreement with your argument. iii. Rule 11(b)(3) requires only that factual contentions have evidentiary support or that they be likely to have such support upon further investigation and discovery 1. Clients testimony is enough to be evidentiary support 2. Must have support for every claim 3. You should still do as much investigation as you can. iv. Rule 11(b)(4) denials of factual evidence are warranted on the evidence or are reasonably based on belief or lack of information.

d. Sanctions Rule 11(c)

i. If Rule 11(b) violated 1. Sanctions may be motioned by other party 2. Court can raise sanctions on their own sua sponte (on its own) a. This must be done before case is dismissed 3. Client and the lawyer, and the lawyers law firm can ALL be sanctioned a. Law firms treated as a whole to encourage firms to ensure their attorneys are not committing violations b. BUT -Client not responsible to know if a requirement is legally correct ii. 21-Day Safe Harbor Rule 1. P has 21 days to withdraw motion before sanctions can be issued 2. This is waivable defense a. Rector v. Approved Federal Savings Bank pg. 348 i. Court holds safe harbor provision of Rule 11 is mandatory but not can be waived.

ii. Its designed to protect the party, and so the individual party may waive it. But also court needs to be protected from frivolous suits. iii. In order to assert the provision, P needed to file a motion asserting the provision as a defense. He did not do this, so the possibility of raising the defense is waived. iv. But dissent may have the more correct view on this issue and many courts follow this view. iii. Can be monetary, professional or criminal sanctions 1. Usually attorneys fees 2. Limited by what is necessary to deter

NOTICE / OPPORTUNITY TO BE HEARD

1. The Constitutional Requirement of Reasonable Notice
a. What is due process?
i. ii. iii. iv. Procedures necessary to make sure you have life, liberty, and property Right to a hearing to contest the facts Right to be notified of the hearing Weird fact: the right to notice and hearing are waivable personal rights

b. Notice must be reasonably processed

i. Court uses balancing test to determine adequacy of notice 1. Balance states interest and interest of D 2. If you have the name/address than service must be sent by mail or in person not via publication. (from Mullane) a. If name/address available via public record, you must notice by mail or in person. b. Posting/publication only okay when address unknown 3. Ex: If its a $500 property, they probably arent spending more than $500 trying to find you; but if its $5 million, they better try extra hard to find you (all about balance and circumstances) 4. Ex. If there is only 1 D in the case, probably not going to let the case go ahead w/o notice. You have to look at the effect on that particular defendant. 5. Balance depends on the interest of the parties ii. Actual notice is not required, but if you know that service was not successful and you ignore it, you have violated due process.

c. Mullane v. Central Hanover Bank & Trust Co. pg. 143

i. Key standard: An elementary and fundamental requirement of due process in any proceeding which is to be accorded finally is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. 1. What is reasonable? a. If you have the addresswe of someone, you must mail the notice. b. No undue burden to mail notice c. Investors had reasonable interest in the bank

2. The Statutory Mechanics of Giving Notice (Rule 4)

a. Generally:
i. Service of process not mere technicality 1. Must comply with both constitutional minimum and statutory/rule requirements 2. Ceremonial method in which the sovereigns right to exercise PJ is validated ii. In federal courts service of process is governed by Rule 4 iii. Rule 4(a) Rules regarding contents, amendments allowed iv. Rule 4(b) Issuance v. There are special rules for serving US Govt and individuals in foreign country vi. Federal rules do NOT allow certified mail

b. Rule 4(c) Service

i. In General Rule 4(c)(1) 1. A summons must be served with a copy of the complaint. 2. P is responsible for: a. Having the summons and complaint served within the time allowed by Rule 4(m) 120 days after filing b. Must furnish the necessary copies for process server ii. Who can serve? Rule 4(c)(2) 1. Anyone who is over 18 and who is NOT a party. 2. Does not exclude attorneys but they should NOT do it because they could become a potential witness and there could be a conflict of interest

c. Individuals Rule 4(e)

i. Which Law Applies? Rule 4(e)(1) 1. Forum State (where district court is located) OR 2. State of Service (where service is made) 3. Look at which rules are simpler ii. Options for Service Rule 4(e)(2) 1. In hand deliver copy of summons and complaint to individual personally 2. Leave copy at individuals dwelling a. Requirements: i. Must be suitable age 1. 13 is too young ii. Must be suitable discretion 1. Must be competent 2. Must speak English iii. Must reside in dwelling 1. Housekeepers, long term guests can count 3. Delivery to legally authorized agent

d. Corporations Rule 4(h)

i. Must be served in a judicial district of the US

1. Following Rule 4(e)(1) via forum state or service states laws OR 2. Delivering copy to an officer, managing or general agent authorized by appointment or by law to receive service

e. Waiver Rule 4(d)

i. Requirements: 1. The complaint, two copies of notice of the action, and a request that the defendant waive formal service of the summons and complaint upon him ii. You can bypass service rules if you can get D to waive process. iii. Why would you return a waiver? 1. You dont want to piss of opposing counsel 2. Avoid penalties a. Unless you have a good cause why you dont return waiver, you have to pay for all expenses of service (service costs + attorneys fees) the burden shifts to you. 3. You get 60 days to answer the complaint instead of 20 days (extra time!) iv. Why would you NOT waive? 1. Youre dodging service 2. MAYBE tactically but then youd have to pay 3. You want to run out the SOL: a. In some states, the SOL timer doesnt stop until service. b. But federal law SOL stops when complaint filed.

f. In Hand Service of Process

i. Requirements: 1. You need to identify yourself as process service and identify the document. Also need to confirm that you are serving the correct person. 2. You have to tell them this is a legal document and its their duty to take it ii. Hypos in class: 1. WHAT IF a defendant just put his hand away and runs away are they considered served? YES. Otherwise no one would ever receive process of service. 2. WHAT IF a defendant is over a barrier and he throws it, and it falls at his feet is he served? MAYBE. But you do create a slippery slope. 3. Difference between court and attorneys opinion. If a process server tells you that they threw it at the person, you should tell them to go back and do it properly unless there is NO OTHER OPTION. 4. WHAT IF Barrier across which the process server throws it is a security barrier before/after between TSA security at the airport and the process server is frustrated and throws it and it lands at his feet? Is that good service? What if TSA picks it up and says it has to go through the belt and then defendant walk away? BAD SERVICE. May violate a TSA rule. Do not encourage bad behavior!

JOINDER OF CLAIMS AND PARTIES & THE SUPPLEMENTAL JURISDICTION STATUTE

1. Joinder of Claim Rule 18
a. This is permissive i. CP not required to assert all claims she has against OP b. If A has a federal claim against B, A can add a state claim against B i. Gibbs Court does not abuse their discretion to confer supplemental jurisdiction to do this. Court uses common nucleus of facts to state why/when they can do this (1367A) constitutional basis for this (article 3, section 2). c. Allows CP to assert every claim she has against the OP no limits. i. Even if the claims are not transactionally related. ii. But first one must be transactionally related. d. Even though claim joinder is permissive under rule 18 it is effectively compulsory because of the law of res judicata (says you may file/litigate a claim only once) e. Rule 42 allows claims to be split up or to join claims. You can always separate out claims under rule 42(b) or join up separate cases for trial under 42(a).

2. Counterclaims and Cross-Claims Rule 13

a. Rule 13(a): Compulsory Counterclaims: A B and B A i. Rule 13(a)(1) In General 1. If the claim B has against A arises out of the same transaction or occurrence as the original claim, and doesnt require another party to be added, then a counter claim is required [in a pleading] 2. Purpose: We dont want to have A sue B then B sue A separately for the same accident. 3. If you dont file it in a pleading, you lose the right to claim it a. Dindo: this rule didnt apply if the first case was settled (res judicata not active) i. Gave benefit of the doubt to plaintiff, very generous b/c of policy b. Cartaret Savings: this rule applies if the first case was a default judgment i. Even though a pleading was never filed 4. To determine if compulsory, always interpret in light of its purpose: a. Purpose of compulsory counterclaims is judicial convenience resolving all things related to one incident/transaction in one judicial action b. Defines same transaction or occurrence by logical relation test i. If it makes sense from the position of judicial economy and convenience to try the claims together, then they will be deemed to have arisen out of the same transaction or occurrence ii. Rule 13(a)(2) Exceptions 1. Claim does not yet exist when pleading was served; or

2. Claim requires unobtainable new parties; or 3. Claim is pending elsewhere; or 4. Suit was under in rem jurisdiction and pleader is asserting no counterclaims b. Rule 13(b): Permissive Counterclaims: A B and B A i. Doesnt arise out of the same occurrence or transaction as the original claim but well allow it [in a pleading] ii. Any claim against an opposing party may be brought