A. Service of Process

4(a-b) WHAT-Clerk Sig and Seal

Summons must direct to defendant and name court and parties.

4(c) WHO-18+ and Not Party

4(c)(1): Summons and Complaint; served within 120 days or good cause (4m)

4(c)(2): Personally, 18+, or Not Party

• Purpose:

  • REMOVE CONFRONTATION from Service

  • REMOVE PERVERSE INCENTIVES b/c plaintiff wants default judgment

  • REMOVE COSTS associated with mandatory sheriff service

• History:

  • Spirit v. Letter of Rule: Judges are master interpreter and critics, try to make it work.

  • HISTORY: before 1993 there was exception to 18+ and nonparty in cases where P served according to state law (4e1)

  • HISTORY: Fed required marshals but it was too costly

4(c)(3): Marshal or court appt. @ P request: in forma pauperis court must give marshal

4(e) HOW-Serve in US-4 Choices

4(e)(1): Can follow state law on serving a summons in juris of district or where service as made OR…

4(e)(2): a)Delivering copy personally; b) at dwelling/abode with someone of “suitable age & discretion who resides there;” c) Service to agent appt. by D or by law to receive service.

• NOTE: 4(e)(2)(a) and (c) don’t require service at place of residence

• GREEN V. LINDSEY: held: where there is cheap & effective way to increase reliability of unreliable procedure, exclusive reliance on unreliable procedure =/= due process of law

  • Facts: Forcible Entry or Detainer action against residents in housing projects

  • Majority arguments: (1) most important part of SRV & Due Process is knowing action is brought against you (2) notice not “reasonably calc” b/c servers knew kids ripped writs off doors (3) mailing is effective & cheap alternative

• Good Standard: What would you do if you were trying to reach the person

AMBIG HYPO: You follow state law in every way but “who” (ex: state law req. sheriff, but you use 18+ NP)

Proper: TEXT ARG: 4(e)(1) (the HOW) states that serving can be done according to state law, while 4(c) (the WHO) allows for anyone 18 or older to serve. Since the case is in federal court it follows federal rules. 4e1 only applies to the how and the federal rules for who can still apply. PURPOSE: Rule(1): " the just, speedy, and inexpensive determination of every action." They allow for the use of state rules (in terms of the how in 4e1 to accomplish that purpose because it might be the optimal value of reliability and cost. HISTORY: FRCP already spec sheriffs cost too much, 18+ NP is cheaper.

Not Proper: bits & pieces of state/FRCP weakens rules. HISTORY: Pre-’93 lang had exception for when P served by state rules, fact that committee tookout exception bolsters arg. TEXT: The rule in 4e1 is just an alternative to the rule in 4e2, so if you choose to use 4e1 you should follow the complete rules of the state. To leave notice under the door it must be done by a marshal as the state rule determines and to have an adult friend serve it must be left with a person according to the federal rule options in 4e2.

4(m) WHEN-120 days-Good Cause Discretionary Extension

4(m): D must be served within 120 days of complaint, or dismissed otherwise with good cause for failure the court can extend the time.

4(L)(1) Affidavit Req, Proof of Service

4(l)(1): Unless service waived or by marshal, proof must be made to court in form of server’s affidavit

4(d) Waiving Service

4(d)(1): D duty to avoid “unnecessary expenses”; waiver request must

• (A) be in writing

• (B) name court

• (C) Copy of complaint & 2 copies of waiver

• (D) inform D of consequences of not waiving

• (E) date

• (F) 30 days response window to waiver, 60 if D outside US

• (G) 1st class mail or other reliable means

4(d)(2): failure to waive w/o good cause D pay

• (A) service expenses

• (B) reasonable expenses of any motion (includes attorney’s fees)

  • INCENTIVES: D has cost saving + more time to respond incentive.

  • INCENTIVES: P has cost saving (D gets cost OR no cost to waive) but may not want D to have extra time to prep

4(d)(3): 60 days to answer complaint, from date waiver request sent, or 90 days for outside US districts

• Good incentive to WVR—D gets 60 days instead of usu. 21

4(d)(5): Personal Jurisdiction or Venue objections not waived by waiver of service

B. Pleading

Plaintiff Pleading & 12(B)(6) Motions

Themes in Pleading

Hand-Holding Theme: Spectrum from “hand-holding” (notice pleading) to “on your own” (pure code pleading or writ system)

• Advantages: Don’t exclude legitimate claims, fairness argument that everyone gets fair shot at justice system

• Disadvantages: court overload, frivolous claims allowed to go to DSC, expensive

Code Pleading Theme: To what extent should litigants be tailoring claims to fit into rules and to what extent does procedural system hamper justice

• CP Example Case—GILLISPIE v. GOODYEAR (1963—SupCt of NC) (demurrer granted)

  • Held: A complaint cannot simply allege the elements of a claim; it must provide factual matter to support each element for a claim. Gave P leave to amend

  • Facts: plaintiff’s complaint alleged that Goodyear employees trespassed and assaulted her but did so in very vague terms—“maliciously assaulted,” etc but didn’t describe specific details outside of the fact that the defendants came to property

8(a) Pleading Reqs

8(a)(1): “short & plain statement” of jurisdiction grounds

8(a)(2): “short & plain statement” of claim showing pleader entitled to relief

8(a)(3): demand for relief sought, may include alternative types of relief

8(d) Be Concise & Alternative Statements OK

8(d)(1): each allegation must be simple, concise and direct; no technical form req.

8(d)(2): party can make two or more claims or defenses and if any is sufficient, then the whole is sufficient

8(d)(3): party can state as many separate claims regardless of consistency

Why? Because courts recognize that parties cannot know exactly what direction facts will go

8(e) Construe Pleadings to DO JUSTICE

8(e): pleadings must be construed to do justice

Ex. If complaint is done by someone who can’t speak...

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