1. CIVIL PROCEDURE 2001 Class 6 September 6, 2001 Professor Fischer

2. 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)) Rules on consolidation and waiver for pre- answer motions in Rule 12(g) and (h)

3. Wrap-Up of Last Class We learned about notice pleading under FRCP 8(a) We learned how to read rules and statutes 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))?

4. HYPO Bella believes that Scout is liable to her in negligence. Bella gets her attorney, Finn, to draft a complaint. Bella learns on a Sunday that Scout is departing on Sunday for to Antarctica for three months. She tells Finn. Finn sends a process server, Penny, to the airport where she personally serves Scout with a copy of the complaint she plans to file, and a summons. First thing Monday morning, Finn files the complaint with the federal court for the district of Anystate. Is service of process proper under the FRCP?

5. ANOTHER HYPO Now Bella wants to sue Paige. She properly files a complaint with the federal district court and, six days later, serves the complaint by delivering a copy of it plus the summons to Paige’s attorney, Caroline. Is service proper under the federal rules? Why or why not? Do you need additional information to answer? If so, what?

6. YET ANOTHER HYPO Sharon files her complaint against Nigel with the Federal Court for the District of Massachusetts. 118 days later she is heading for Nigel’s house when she is hit by a giant SUV and left in a coma for three days. Nigel finds out from a mutual friend that Sharon filed the complaint. The friend tells Nigel exactly what Sharon’s claim is against him. You are the judge. Should you dismiss Sharon’s case 122 days after filing? Why or why not?

7. 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?

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

9. WAIVER OF SERVICE Waiver is a way of notifying the D of the action while waiving formal service The governing provision is FRCP 4(d). You should be familiar with it.

10. WAIVER OF SERVICE RULE 4(d) HOW DOES P REQUEST A WAIVER OF SERVICE?

11. WAIVER OF SERVICE RULE 4(d) HOW DOES P REQUEST A WAIVER OF SERVICE? P sends D the complaint, 2 copies of a notice of the action, and a request that the D waive formal service of the summons and complaint upon him. If D returns the request, that waives formal service.

12. INCENTIVES TO WAIVE SERVICE The FRCP contain some incentives for individuals and corporations to waive service. What are these?

13. INCENTIVES TO WAIVE SERVICE 1. Duty on D to avoid unnecessary costs of service (4(d)(2)) 2. Costs 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))

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

15. 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)

16. 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.

17. 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

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

19. 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.

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

21. 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)

22. 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)

23. 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) http://www.nysd.uscourts.gov/rules/rules.htm http://www.nysd.uscourts.gov/judges.htm

24. Rule 12(b)(6) motion What is the purpose of a Rule 12(b)(6) motion?

25. Rule 12(b)(6) motion What is the purpose of a Rule 12(b)(6) motion? Issue: is P’s claim legally sufficient?

26. Rule 12(b)(6) motions Judges consider motion based ONLY on the complaint, not other material What presumptions does the court make on a Rule 12(b)(6) motion?

27. Rule 12(b)(6) motions What presumptions does the court make on a Rule 12(b)(6) motion? Judges assume that all pleaded facts in the complaint are true, resolving doubts in pleader’s favor FRCP (and its scheme of notice pleading) create a powerful presumption against dismissing pleadings on 12(b)(6) motion

28. Presumption Against Dismissal on 12(b)(6) Motion Even if P’s stated legal theories are not cognizable, 12(b)(6) motions will fail if there are other tenable legal theories apparent from the face of the complaint Judges are quite liberal in granting amendments to complaints where they can be altered to remedy the failure to disclose a cause of action

29. Rule 12(e) Motions How does a Rule 12(e) motion differ from a Rule 12(b)(6) motion?

30. Rule 12(e) Motions How does a Rule 12(e) motion differ from a Rule 12(b)(6) motion? A rule 12(e) motion is a motion for a more definite statement on the basis that a pleading is so vague or ambiguous that D can’t respond to it. Unlike Rule 12(b)(6) motions, Rule 12(e) motions can attack pleadings that state cognizable legal claims

31. Are 12(e) motions granted frequently?

32. Notice pleading requirements mean that Rule 12(e) motions are granted rarely. Rule 12(e) motions can’t be used as a discovery tool

33. Rule 9(b) Motion What is a 9(b) motion?

34. Rule 9(b) Motion What is a 9(b) motion? A motion alleging that a party has not met its requirement to plead fraud or mistake with particularity. Note tension between 8(a) and 9(b)

35. Bower v. Weisman Sachiko Bower Frederick Weisman

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

37. Bower v. Weisman What legal arguments does Weisman make?

38. 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

39. Bower v. Weisman What legal arguments does Bower make?

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

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

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

43. Bower v. Weisman Why, if the governing rule of pleading is “notice pleading”, does the trial judge look at each count in so much detail, going count by count and considering what facts were alleged for each element? Isn’t this at odds with the holding of Conley v. Gibson?

44. Rule 12(b)(6) motion D can win if D can persuade the judge that A. No legally cognizable cause of action exists B. OR legally cognizable cause of action but P does not state sufficient information to suggest that P has this cause of action C. OR legally cognizable cause of action and specific facts pleaded, but even if those facts are true, they don’t give rise to the alleged cause of action.

45. Rule 12(b)(6) motion in Carpenter v. Dee Practice Exercise No. 7 What arguments might Nancy Carter make in response to the motion? How do you think the judge should rule on the motion? Why?

46. Rule 12(e) motion in Carpenter v. Dee Practice Exercise No. 7 What arguments might Nancy Carter make in response to the motion? How do you think the judge should rule on the motion? Why?

47. Other 12(b) motions Other than 12(b)(6), what are the other motions to dismiss under Rule 12(b)? Can only a Defendant make these motions?

48. Other 12(b) motions Other than 12(b)(6), what are the other motions to dismiss under Rule 12(b)? 12(b)(1)- no subject matter jurisdiction 12(b)(2) – no personal jurisdiction 12(b)(3) – improper venue 12(b)(4) - insufficiency of process 12(b)(5) – insufficiency of service of process 12(b)(7) – failure to join a party under FRCP 19 Can they be made only by defendant? No – also by plaintiff in response to counterclaim

49. Timing of 12(b) motions Must a D make a 12(b) motion? When should D make a 12(b) motion? How does D make a 12(b) motion? If D makes a 12(b) motion, must D still answer within the required period for serving the answer under the FRCP? [review question: what is that period?]

50. DANGER OF WAIVER Right to make pre-answer motions may be waived if D does not follow the requirements in Rule 12 THIS IS AN AREA WHERE IT IS EASY FOR LAWYERS TO MAKE MISTAKES WITH SERIOUS CONSEQUENCES, SO PAY ATTENTION CAREFULLY!

51. USE IT OR LOSE IT FRCP Rule 12(g), 12(h) Which types of 12(b) defenses can be waived? How can a D lose the right to make these 12(b) defenses?

52. Subject Matter Jurisdiction What does Rule 12(h)(3) provide? Why do you think that subject matter jurisdiction receives this special treatment under the FRCP?

53. Early Determination of 12(b) Defenses See Rule 12(d) Why do the FRCPs encourage the early determination of the 12(b) defenses?

54. HYPO Pooh is served with a complaint in a federal civil action brought by Piglet. Pooh makes a pre-trial 12(b)(2) motion for lack of personal jurisdiction, and loses. In preparing his Answer, Pooh wants to include a defense that service of process was invalid under the FRCP because it was made by first-class mail. Please advise Pooh as to whether he can include this defense in his answer.

55. ANOTHER HYPO Pooh is served with a complaint in a federal civil action brought by Piglet. Pooh makes a pre-trial 12(b)(2) motion for lack of personal jurisdiction and loses. In preparing his Answer, Pooh wants to include a defense that the court has no subject matter jurisdiction. Please advise Pooh on whether he can include this defense in his Answer.

56. JAWS HYPO Mary is the mother of Sam, a young swimmer who was eaten by a shark while swimming at Duck town beach off the Outer Banks. Mary sues the Mayor of Duck in a North Carolina federal district court for wrongful death based on negligent failure to install and maintain shark nets. The Mayor makes a pre- trial motion for lack of personal jurisdiction and loses. His attorney advises him to make another motion for failure to state a claim under Rule 12(b)(6). Procedurally, is this good advice? Why or why not?

57. Summary: What You Should Have Learned Today You should be familiar with the procedure for and advantages of waiving service under FRCP 4(d) You should know what a motion is (see Rule 7(b)) You should understand how and why a party makes a pre- trial motion to dismiss under FRCP 12(b) You should understand how and why a party makes a motion under FRCP 9(a) and 12(e) You should understand what the moving party must prove to succeed on a Rule 12(b)(6), Rule 9(a), and 12(e) motion. You should understand the effect of the consolidation and waiver provisions in FRCP 12(g) and (h)