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Civil Procedure - 9/16 - Service, defenses and objections
Terms in this set (25)
Rio Properties, Inc. V. Rio International interlink holding
1 - Cts conclude 4f3 is not a last resort or extraordinary relief. It's an equal means of effecting service of process under FRCP.
2 - Judgement commits to the sound discretion of district ct the task of determining when particuliarities and necessities of a given case require alternate service of process under rule 4f3.
4 - RIO need not have attempted every permissible means of service of process before petitioning the ct for alternate relief, RIO only needed to demonstrate that the facts and circumstances of the present case necessitated the district ct's intervention.
5 - Each method of service was reasonably calculated, under these circumstances, to apprise RII of the pendency (state of being pending) of the action and afford it an opportuinty to respond.
6 - Constitution doesn't requrie any particular means of service of process, only that the method selected be reasonably calculated to provide notice and an opportunity to respond.
Rational behind court's interpretation of 4f3 in RIO vs RII
1 - 4f3 has no other limitations but the service must be: directed by the ct, and 2 - not prohibited by international agreement.
2 - 4f3 is not subsumed within or in any way dominated by rule 4f's other subsections; it stands independently on equal footing. No language in 4f1 or 4f2 indicates their primacy, and, 4f3 includes no qualifier or limitations which indicate its availability only after attempting service process by other means.
3 - Additionally, advisory note indicate the availability of alternate serve of process under r4f3 without first attempting service by other means.
Method of service and the constitutional notion of due process
To meet the due process requirement, the method of service crafted by the dist. Ct must reasonalbly calculated, under all circumstances to apprise interested parties of the pendency (state of being pending)) of the action and afford them an opportunity to present their objections. Also applies
Service by email
A plaintiff may not generally resort to service of process by e-mail on his own initiative, but must seek approval of court of use of such an alternative means of process
The paper that tells a defendant that he or she is being sued and asserts the power of the court to hear and determine the case. A form of legal process that commands the defendant to appear before the court on a specific day and to answer the complaint made by the plaintiff.
RIO vs RII questions
Must a plaintiff exhaust other methods of service under 4f before jumping to the catchall under 4f3? Was the method of service in alignment with constitutional requirement of due process? Was email sufficeint under 4f3?
Dismissal with prejudice
the plaintiff cannot correct the defect in the complaint.
Dismissal without prejudice
allows a plaintiff to file an amended complaint correcting the deficiency.
Waiving and preserving 12b defenses
The defenses listed in rules 12b2-6 are lost if they are not properly preserved in either a motion or an answer (check 12g and h). They are also lost if the def. makes a motion under rule12 but fails to raise any of the other defenses then available. A failure to preserve or raise the defenses under 12b6 and 12b7 limits a def.'s opportunity to raise them later, but doesn't bar them. And, a defense can never lose a rule12b1 defense.
12b6 motion requirements of the courts
For 12b6 motions for failure to state a claim, courts must accept as true all plausibly pleaded factual assertions, although they need not accept unbelievable assertions or legal conclusions. In addition, courts draw all reasonable inferences from properly alleged facts in favor of the plaintiff
Judgment on the pleadings motioned by the plaintiff
this motion is the equivalent of a 12b6 motion. A plaintiff may believe that the defendant's answer when coupled w/ the complaint proves the plaintiff's entitlement to a favorable judgment. Rule 12c motion allows the ct to enter judgment in favor of plaintiff when appropriate. the same standard applicable to 12b6 motions to dismiss applies to 12c motions for judgment on the pleadings.
Judgment on the pleadings motioned by the defendant
For the defendant, 12c motion often acts as a delayed 12b motion. After defendant files an answer, the time for filing 12b motion has passed. 12c motion serves as the vehicle for raising certain 12b defenses that were not raised in an earlier 12b motion (12h2b mentions the use of 12c motion to raise defenses available under 12b6-7). the same standard applicable to 12b6 motions to dismiss applies to 12c motions for judgment on the pleadings.
If the defendant has no R12 motions to raise, or chooses not to file a r12 motion, or the ct denies a r12 motion, the def. must answer the complaint (if you file an answer, you can't file a motion to dismiss). An answer must admit or deny the allegations in the complaint (r8b1B), and it must state in short and plain terms its defenses (r8b1A). You can put an affirmative defense in the answer (8c1).
Milton V. General Dynamics Ordnance and Tactical Systems Inc. holding
1 - The only permissible responses to a complaint under FRCP 8b are admissions, denial, or a statement of the absence of both knowledge and information sufficient to form a belief.
2 - Under 8b6 an allegation is admitted if a responsive pleading is required and the allegation is not denied.
3 - Under 8b1B however, a party is required to respond only to allegations asserted aginst it by an opposing party.
4 - The Court is not interested in placing blame on or punishing the parties for unintentional, non-prejudicial errors. But it is in the interest of both the Court and the parties that the litigation commences with a complaint that clearly sets out the factual and legal bases for relief. The Court is mindful that its ultimate goal is to allow the case to proceed on its merits.
5 - Though a party is of course excused from responding to a separate claim brought only against other parties to the litigation, there is simply no room for the quoted nonresponse to an allegation made in the midst of a claim that does target the responsive pleader
a request for some sort of relief. a motion isnt a pleading (7a). Filing a motion under 12b is alternative to answering a complaint
a reason to deny recovery to the plaintiff even if everything in the complaint is true (eg statute of limitation, damages already paid).
Racick V. Dominion Law Associates holding
1 - When reviewing a motion to strike, the court must view the pleading under attack in a light most favorable to the pleader.
2 - To survive a motion to strike, at a minimum, the facts asserted in an affirmative defense, and the reasonable inferences that may be drawn from those facts, must plausibly suggest a cognizable defense.
3 - The considerations of fairness, common sense and litigation efficiency underlying Twombly and Iqbal " mandate that the same pleading requirements apply equally to complaints and affirmative defenses.
4 - The court also notes that applying the same pleading requirements to defendants should not stymie the presentation of a vigorous defense, because under Rule 15(a) of the Federal Rules of Civil Procedure, a defendant may seek leave to amend its answers to assert defenses based on facts that become known during discovery.
5 - Accordingly the ct will turn to the affirmative defenses asserted by the defendant to determine if they have been pleaded in manner that is intelligible, gives fair notice, and is plausible suggested by the facts.
6 - When reviewing a motion to strike, the court must view the pleading under attack in a light most favorable to the pleader.
7 - Given the disfavored status of motions to strike defenses, a defendant normally is allowed leave to amend the answer.
8 - To survive a motion to strike, at a minimum, the facts asserted in an affirmative defense, and the reasonable inferences that may be drawn from those facts, must plausibly suggest a cognizable defense.
Racick V. Dominion - plaintiff moves to strike affirmative defenses
Ptiff files motion to strike affirmative defenses pursuant to r12f. ptiff suggests that plausibility standard set forth in twombly and iqbal should apply to affirmative defenses under r8c and contends that all of the affirmative defenses asserted by defendant contain no facts whereby ptiff cannot conceivably be put on notice as to the factual and legal basis for the purported defenses.
Racick V. Dominion - defense response to plaintiff's motion to strike affirmative defenses
Defense in response contend that plausibility standard doesn't apply to affirmative defenses
Why motions to strike are viewed w/ disfavor by courts
r12f motions are generally viewed w/ disfavor b/c striking a portion of the pleading is a drastic remedy. A defendant is normally allowed leave to amend the answer.
Reasons why plausibility standard (twiqbal) should apply to affirmative defenses
(this is the majority view among district cts) 1 - it neither makes sense nor is it fair to require a plaintiff to provide the def w/ enogh notice that there is a plausible, factual basis for her claim under one pleading standard and then permit a def under another pleading standard simply to suggest that some defense may possible apply in the case.
2 - the courts note that boilerplate defenses clutter the docket and create unnecessary work and extended discovery (efficiency).
slang for provisions in a contract, form or legal pleading which are apparently routine and often preprinted.
Reasons why plausibility standard (twiqbal) shouldn't apply to affirmative defenses
1 - twombly and iqbal addressed only r8a of the FRCP, and neither r8b nor r8c contains the same language ("show" vs "state").
2 - Additionally courts have noted that it may be unfair to requre a defendant who has only 21 days to respond to a complaint, to adhere to the same pleading standard as a pttiff who often enjoys significantly greater time to develop factual support for claims.
Waiving affirmative defenses
If you don't bring one up under 8c, you lose it (you raise it or you waive it)
Due process standard for a method of service
To meet this requirement, the method of service crafted by the dist. Ct must reasonalbly calculated, under all circumstances to apprise interested parties of the pendency (state of being pending)) of the action and afford them an opportunity to present their objections.
THIS SET IS OFTEN IN FOLDERS WITH...
Civil Procedure - 9/18/2013 - Amending the Pleadin…
Civil Procedure - 9/11 - Twombly and Iqbal
Civil Procedure - 9/23 - Discovery in General
Civil Procedure - 9/25 - Relevancy and admissibili…
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