To help you understand civil litigation, let's go over a few basics.

Definitions:
Claim: Under the Federal Rules of Civil Procedure, a “claim” is the group of circumstances for which a court will grant relief (sometimes it is also called a "cause of action").

Element: Each claim is divided into parts, called “elements.”

Prima Facie Case: When the judge asks what a lawyer’s prima facie case is, she may either be asking for the elements of the claim or a short description of the evidence the lawyer has for each of those elements.

Winning in Civil Litigation:
In order to win in civil litigation, a plaintiff has three obligations. The plaintiff must first state a claim for
which they are entitled to relief (and in some cases, state facts underlying the claim). This is sometimes referred to as the "burden of pleading". Second, the plaintiff must meet a "burden of production" by submitting evidence to permit a reasonable person to find each element of the claim. Third, the plaintiff must ultimately meet a "burden of persuasion" by persuading the fact finder that each element is true. The burdens are like successive hurdles in the Olympics with the course of civil litigation being like the race. Once you jump over one you then face the second and then the third.

Sample Claims:
When a claim/cause of action is created by state law, that is where you will find a list of its elements (either by statute or less often by the work of common law judges). When federal law creates the cause of action, that is where you will find the elements. Many of your first year classes are about learning what these elements are and how they work. To give you an example, here are a few common civil causes of action you may already have encountered.

Assault: (1) intent to cause harmful or offensive contact; and (2) imminent apprehension of such contact.

Defamation: (1) false and defamatory statement; (2) publication not privileged; (3) fault (in some cases
negligence and in some cases malice); (4) injury; and (5) recipient understood communication refers to plaintiff.

Negligence: (1) duty; (2) breach; (3) cause-in-fact; (4) proximate cause; and (5) injury.

Trespass: (1) unauthorized entry by defendant; (2) property possessed by plaintiff; and (3) injury (damage).

Under FRCP 12(c), a motion for judgment on the pleadings is a way for a party to challenge the substantive sufficiency of an opposing party’s pleadings.  Under FRCP 12(f), a motion to strike is a way to challenge the substantive sufficiency of defenses in an answer.  For instance, in Biggs v. Pub. Serv. Coordinated Transp., 280 F.2d 311 (3d. Cir. 1960), the court held that the defendant’s general denial of the plaintiff’s jurisdictional allegations could not possibly apply to the allegation that the defendant was a New Jersey corporation, and that the only fair interpretation of the answer is that that allegation must be deemed to be admitted.  A defendant typically can rely on a general denial to say it has denied specific allegations in a plaintiff’s complaint.  Thus, in Ways v. City of Lincoln, 2002 WL 1742664 (D. Neb. 2002), the court found that the defendants had effectively denied certain particular allegations because the defendants had stated in their answer that they “[d]eny that Plaintiff is entitled to any relief at law or in equity as alleged in the Complaint," and that they “[d]eny each and every other allegation contained in Plaintiff’s Amended Complaint except those specifically admitted herein . . . .”  Id. at *23.

Under FRCP 7(a), a plaintiff must reply to an answer that contains counterclaims.  Otherwise, whether to require a reply to an answer is within the discretion of the court. 

Under FRCP 8(b)(6), allegations to which a reply is not required are considered avoided or denied and a plaintiff may controvert them at trial, while allegations to which a reply is required are taken as admitted if not denied in the reply or if a reply is not filed.

General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

• accord and satisfaction;

• arbitration and award;

• assumption of risk;

• contributory negligence;

• duress;

• estoppel;

• failure of consideration;

• fraud;

• illegality;

• injury by fellow servant;

• laches;

• license;

• payment;

• release;

• res judicata;

• statute of frauds;

• statute of limitations; and

• waiver.

(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

(1) In General. Each allegation must be simple, concise, and direct. No technical form is required.

(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

(e) Construing Pleadings. Pleadings must be construed so as to do justice.

Although connected to notice (a topic we discuss in a later Unit), Service of Process (SOP) is actually its own creature. The former is a constitutional requirement; the latter (in the federal system) is an FRCP requirement. State court systems may use a different form of SOP to satisfy the constitutional requirement.

FRCP 4 and the term “service of process”, to be finicky, is just for the complaint. It gets singled out because it is of particular importance as the first notice (usually) that there is a lawsuit. All other pleadings, motions, discovery requests, etc. fall under the more forgiving requirements of FRCP 5, which allows in person service or even just mailing it to the person’s last known address.

A. Basics.

What is the “process” to be served: technically "process" refers to the act of giving the defendant the initial notice of a lawsuit filed against him (a.k.a the summons) with a complaint attached [FRCP 4(a)(1) and 4(c)(1).]

What does the “process” contain?

FRCP 4(a)(1)

Contents. A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff's attorney or—if unrepresented—of the plaintiff;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court's seal.

For an example look at form 3 linked on the online casebook.

How do you do service? There are different rules for individuals v. corporations and other entities. And for inside vs. outside US.

For individuals in the U.S.

5 methods. 3 traditional methods in FRCP 4(e)(2):

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Can you deliver to someone's summer home? No. Can a casual guest accept it under FRCP 4(e)(2)(B)? No.

Notice that the (C) clause is more restrictive than the equivalent clause for corporations below, in that it only allows it to go to agents authorized by appointment or by law to receive service of process, not general agents.

What is missing here? Mail. The old system used mail but rulemakers decided it was more hassle than it was worth, so no mail except through the waiver system or if that is authorized by state law system.

Who can be the person who delivers using these options? Anyone over 18 yrs old who is not a party to the action [FRCP 4(c)(2)]

Before 1983, the rule was different and required a U.S. Marshal or someone designated by court. That delayed things a lot, so they scrapped it but at Pl’s request you can still use a marshal [FRCP 4(c)(3)] to, for example, serve a plaintiff for a battery action in a domestic abuse situation. If the plaintiff is a seaman or in forma pauperis the court must do it by marshal.

4th option: Use the method of service of the state in which the federal court in which you are suing in sits [FRCP 4(e)(1)]. For example, if in the Central District of California, you can use California’s service of process rules. This is Pl’s option.

5th option: if the defendant resides outside the state in which the action is commenced, you can use that state’s service rule. [FRCP 4(e)(1)] If you are doing “tag” jurisdiction, you can also serve him with the service rule of the state where you “tag” him (more on this later with Burnham, a case in the Personal Jurisdiction Section). You would not know it but it comes from the words “where service is made” in FRCP 4(e)(1).

Notice that FRCP allows SOP outside of the forum state, which was an innovation of the 1993 amendments. Not all states do.

For individuals outside the U.S.

There are special rules for serving individuals outside the U.S. [FRCP 4(f)]. Different countries use widely different methods of SOP. The rule allows “internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents." That convention requires each contracting state to establish a central authority which receives and executes requests for service or process from other contracting states and makes sure that certification of service of process is effective. [Don’t worry about the details]

Note that this rule leaves open the possibility that a method that would be good enough in the USA would not be good enough elsewhere. (This is covered in the Private International Law class).

For corporations, partnerships, associations inside the U.S.

4 methods

FRCP 4(h)(1)(a): Directs you to the two options in FRCP 4(e)(1) (service by the method of the state where the case is filed, or where the corp can be served) [but note, you’d use the equivalent state law method for serving a corporation, not serving individuals]

FRCP 4(h)(1)(B) adds a third and fourth method:

by delivering a copy of the summons and of the complaint to an officer, a managing or general agent,

or [by delivering it to] any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant.

The third: Officers are officially appointed as a matter of corporate law and usually required to be identified with forms you file with the state in chartering your corporation.

The fourth one is meant to be for a case where a contract specifies an agent for service of process (e.g., "for action on this contract about candlestick sales, Jean Valjean will receive service) [“by appointment”], or a case where a state designates an agent by statute (e.g., as we'll see in the Hess case later, MA passed a law that said if you drive in Massachusetts you authorize service on the department of motor vehicles for any suit arising from an accident) [“by law”].

On the option of delivering to officer, managing, or general agent….

Insurance Co of North America v. S/S Hellenic Challenger (SDNY) (found a little later in the casebook and discussed in class).

For corporations, partnerships, associations outside the U.S.

FRCP 4(h)(2) directs you to the same methods in FRCP 4(f) for individuals—except personal delivery under FRCP 4(f)(2)(C)(i): where there is no internationally agreed upon method you cannot use the (i) delivering a copy of the summons and of the complaint to the individual personally. This is a level of detail not worth bothering yourself about.

B. Waiver of Service

A different way of satisfying the rule, without doing service.

FRCP 4(d): Waiver of service is encouraged: Pl notifies Def in writing (“by first class mail or other reliable means”) that he wants him to waive service with pertinent info (spelled out in rules), the complaint, two copies of a waiver of service form [look at Form 5 and 6 in Canvas] and prepaid envelope asking him to waive service and giving him at least 30 days to respond (60 if outside U.S.). If Def fails to waive service without good cause, the Def has to pay the expenses of service along with any expenses relating to collecting those expenses. YOU STILL NEED TO SERVE DEF.

If Pl uses this method and Def agrees to waive, the Def gets 60 days from the day the request for waiver (and complaint) was sent (90 if outside the U.S.) to file answer or 12(b)(6) motion.

So two carrots for Def: you don’t have to pay for the service and you get extra time to respond.

Waiving service is not a waiver of objections to venue or personal jurisdiction.

Notice how the waiver idea solves any notice concern, if you waive you obviously got it.  If you don’t we just go back to personal service, the default method.

C. Timing, AKA the consequence of bad service

FRCP 4(m): For service in the U.S., if Pl fails to serve w/in 90 days of filing complaint, the court can dismiss without prejudice (unless Pl shows good cause for delay).

It is a dismissal without prejudice, so no preclusion effects [we will discuss preclusion later in the course].

D. Challenging Bad Service

FRCP 12(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

. . .

(4) insufficient process;

(5) insufficient service of process;

. . .

What is the difference between the two provisions? A motion to dismiss under FRCP 12(b)(4) attacks the sufficiency of process, thus challenging the form of the summons itself. A defect in the form of the summons results from “noncompliance with the provision of [FRCP] 4(b) or any applicable provision incorporated by FRCP 4(b) that deals specifically with the content of the summons.” Most defects in the form of the summons are considered technical in nature (e.g., incorrect name of the defendant).  Thus, dismissal is generally not appropriate unless the moving party can establish some actual prejudice.

By contrast, a Rule 12(b)(5) motion, which is based on insufficiency of the service of process, does not challenge the form of the summons, but the service of the summons on the defendants. A Rule 12(b)(5) motion is the proper vehicle for challenging the lack of delivery or the failure to comply with the provisions of FRCP 4(d)-(m), which outline various requirements of service.

The failure to properly serve defendants grants the court broad discretion to dismiss an action pursuant to Rule 12(b)(5) or quash service of process in the alternative and allow them to re-serve.

E. Return of Service

After the process-server has delivered the papers, she must file a return, which should disclose enough facts to demonstrate that defendant actually has been served and given notice to appear in court. Proper return is ordinarily necessary for the trial court to conclude it has jurisdiction. Specific forms differ from state to state. Usually an affidavit by the person who performed the service or sworn statement of marshal, sheriff, if they did it. That is the federal rule in FRCP 4(l) (an affidavit required unless it is US marshal serving),

Once a return has been filed, there is a strong presumption that the Rule was satisfied, a presumption that can be overcome but is very hard to do. The defendant’s own testimony is not enough and you need something to corroborate it.

For example, in the Miedrich case, the Supreme Court upheld a mortgage foreclosure action even though the person was never served; the sheriff just lied and said he did serve. The rationale? The party serving the complaint did everything they were supposed to. The Court notes that when the return is falsely made, under that state’s law, the aggrieved could proceed against the sheriff who has to post a bond.

Commencing an Action

A civil action is commenced by filing a complaint with the court.

Commencing an Action

(a) Contents; Amendments.

(1) Contents. A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff's attorney or—if unrepresented—of the plaintiff;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court's seal.

(2) Amendments. The court may permit a summons to be amended.

(b) Issuance. On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons—or a copy of a summons that is addressed to multiple defendants—must be issued for each defendant to be served.

(c) Service.

(1) In General. A summons must be served with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.

(2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

(3) By a Marshal or Someone Specially Appointed. At the plaintiff's request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. §1915 or as a seaman under 28 U.S.C. §1916.

(d) Waiving Service.

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons. The notice and request must:

(A) be in writing and be addressed:

(i) to the individual defendant; or

(ii) for a defendant subject to service under Rule 4(h), to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process;

(B) name the court where the complaint was filed;

(C) be accompanied by a copy of the complaint, 2 copies of the waiver form appended to this Rule 4, and a prepaid means for returning the form;

(D) inform the defendant, using the form appended to this Rule 4, of the consequences of waiving and not waiving service;

(E) state the date when the request is sent;

(F) give the defendant a reasonable time of at least 30 days after the request was sent—or at least 60 days if sent to the defendant outside any judicial district of the United States—to return the waiver; and

(G) be sent by first-class mail or other reliable means.

(2) Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant:

(A) the expenses later incurred in making service; and

(B) the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.

(3) Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.

(4) Results of Filing a Waiver. When the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.

(5) Jurisdiction and Venue Not Waived. Waiving service of a summons does not waive any objection to personal jurisdiction or to venue.

(e) Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by:

(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country's law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or

(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.

(g) Serving a Minor or an Incompetent Person. A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made. A minor or an incompetent person who is not within any judicial district of the United States must be served in the manner prescribed by Rule 4(f)(2)(A), (f)(2)(B), or (f)(3).

(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant's waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant; or

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

(i) Serving the United States and Its Agencies, Corporations, Officers, or Employees.

(1) United States. To serve the United States, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought—or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or

(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;

(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and

(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.

(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.

(3) Officer or Employee Sued Individually. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g).

(4) Extending Time. The court must allow a party a reasonable time to cure its failure to:

(A) serve a person required to be served under Rule 4(i)(2), if the party has served either the United States attorney or the Attorney General of the United States; or

(B) serve the United States under Rule 4(i)(3), if the party has served the United States officer or employee.

(j) Serving a Foreign, State, or Local Government.

(1) Foreign State. A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. §1608.

(2) State or Local Government. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by:

(A) delivering a copy of the summons and of the complaint to its chief executive officer; or

(B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant.

(k) Territorial Limits of Effective Service.

(1) In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant:

(A) who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located;

(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or

(C) when authorized by a federal statute.

(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:

(A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and

(B) exercising jurisdiction is consistent with the United States Constitution and laws.

(l) Proving Service.

(1) Affidavit Required. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server's affidavit.

(2) Service Outside the United States. Service not within any judicial district of the United States must be proved as follows:

(A) if made under Rule 4(f)(1), as provided in the applicable treaty or convention; or

(B) if made under Rule 4(f)(2) or (f)(3), by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee.

(3) Validity of Service; Amending Proof. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended.

(m) Time Limit for Service. If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).

(n) Asserting Jurisdiction over Property or Assets.

(1) Federal Law. The court may assert jurisdiction over property if authorized by a federal statute. Notice to claimants of the property must be given as provided in the statute or by serving a summons under this rule.

(2) State Law. On a showing that personal jurisdiction over a defendant cannot be obtained in the district where the action is brought by reasonable efforts to serve a summons under this rule, the court may assert jurisdiction over the defendant's assets found in the district. Jurisdiction is acquired by seizing the assets under the circumstances and in the manner provided by state law in that district.

Summons

(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.

(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.

(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or

(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

(g) Joining Motions.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.

(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

(h) Waiving and Preserving Certain Defenses.

(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:

(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or

(B) failing to either:

(i) make it by motion under this rule; or

(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:

(A) in any pleading allowed or ordered under Rule 7(a);

(B) by a motion under Rule 12(c); or

(C) at trial.

(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)–(7)—whether made in a pleading or by motion—and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

Pleadings Allowed; Form of Motions and Other Papers

Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.

(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.

(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or

(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

(c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

(e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

(f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

(g) Joining Motions.

(1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule.

(2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.

(h) Waiving and Preserving Certain Defenses.

(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)–(5) by:

(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or

(B) failing to either:

(i) make it by motion under this rule; or

(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

(2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:

(A) in any pleading allowed or ordered under Rule 7(a);

(B) by a motion under Rule 12(c); or

(C) at trial.

(3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

(i) Hearing Before Trial. If a party so moves, any defense listed in Rule 12(b)(1)–(7)—whether made in a pleading or by motion—and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial.

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

• accord and satisfaction;

• arbitration and award;

• assumption of risk;

• contributory negligence;

• duress;

• estoppel;

• failure of consideration;

• fraud;

• illegality;

• injury by fellow servant;

• laches;

• license;

• payment;

• release;

• res judicata;

• statute of frauds;

• statute of limitations; and

• waiver.

(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

(1) In General. Each allegation must be simple, concise, and direct. No technical form is required.

(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

(e) Construing Pleadings. Pleadings must be construed so as to do justice.

Computing and Extending Time; Time for Motion Papers

(a) Computing Time. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

(2) Period Stated in Hours. When the period is stated in hours:

(A) begin counting immediately on the occurrence of the event that triggers the period;

(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and

(C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.

(3) Inaccessibility of the Clerk's Office. Unless the court orders otherwise, if the clerk's office is inaccessible:

(A) on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or

(B) during the last hour for filing under Rule 6(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday.

(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends:

(A) for electronic filing, at midnight in the court's time zone; and

(B) for filing by other means, when the clerk's office is scheduled to close.

(5) “Next Day” Defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(6) “Legal Holiday” Defined. “Legal holiday” means:

(A) the day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, or Christmas Day;

(B) any day declared a holiday by the President or Congress; and

(C) for periods that are measured after an event, any other day declared a holiday by the state where the district court is located.

(b) Extending Time.

(1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time:

(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or

(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

(2) Exceptions. A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).

(c) Motions, Notices of Hearing, and Affidavits.

(1) In General. A written motion and notice of the hearing must be served at least 14 days before the time specified for the hearing, with the following exceptions:

(A) when the motion may be heard ex parte;

(B) when these rules set a different time; or

(C) when a court order—which a party may, for good cause, apply for ex parte—sets a different time.

(2) Supporting Affidavit. Any affidavit supporting a motion must be served with the motion. Except as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 7 days before the hearing, unless the court permits service at another time.

(d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).

The Answer: Some Basics

When faced with a complaint, defense lawyers have a variety of tools they can use to respond. An Answer to a complaint can contain four different types of responses. First, it can contain admissions and denials to the particular points made in the plaintiff’s complaint (see the Catalona Answer as an example). Second, it can contain defenses under FRCP 12(b) (e.g., lack of subject matter or personal jurisdiction, improper venue, or failure to state a claim). Third, the Answer can contain affirmative defenses under FRCP 8(c). Finally, the Answer can contain counterclaims and cross-claims under FRCP 13 that were not mentioned in the complaint (we will discuss both in a later portion of the course). Defense counsel can also choose to add an additional defendant to a counterclaim or can choose to otherwise add parties. One of the major purposes of the Answer in the FRCP system is to help narrow the issues that will be litigated and allow the court and the other party to understand which controversies are “live” ones.

Admissions and Denials

Under FRCP 8(b), a party is required to admit or deny each averment in the complaint, except when the party “lacks knowledge or information sufficient to form a belief about the truth of an allegation.” The Answer may deny specific allegations, whole paragraphs, or the entire complaint. FRCP 11, which we will study shortly, is what keeps defendants honest in their Answer. Defendants are often reluctant to admit anything in a complaint—particularly legal conclusions (e.g., Def was negligent)—because doing so causes those conclusions to be binding for the rest of the trial unless the Answer is amended.

Defense counsel should be especially cautious in admitting and denying an entire sentence in a complaint when they only mean to deny portions of it. In Zielinski v. Philadelphia Piers, Inc., 139 F. Supp. 408 (D.C. Pa. 1956), the plaintiff alleged that a vehicle “owned, operated, and controlled” by the defendant was negligently caused to come into contact with the plaintiff and to injure him. The defendant denied the entire paragraph of averments, when he easily could have admitted that the accident happened, that the defendant owned the vehicle, and that there was some injury to the plaintiffs. Did the defendant lie when he denied that he “owned, operated, and controlled” the vehicle when he did own the vehicle? It is a close question; technically, you could argue that he denied the conjunction of the three verbs. In this case the plaintiff sued the wrong defendant and by the time the plaintiff realized the statute of limitations had already run. To punish the defendant for what it viewed as a surreptitious use of the denial mechanism, the court ruled that the defendant should be treated as though it had admitted operation and control of the vehicle in question. That is pretty harsh medicine, and few courts would go so far to punish a defendant who technically plead the truth. Nonetheless, the case is illustrative of how important choosing when to admit and when to deny can be in the Answer. There is also a lesson to be learned for the plaintiff who drafted that complaint: never put an “and” into a single line of the complaint where the denial could be read as denying merely the conjunction. It would have been better to plead in the complaint separate statements about ownership, operation, and control.

Although defense counsel may state that they “lack knowledge or information sufficient to form a belief about the truth of an allegation,” pleading that way should not be done lightly. Some jurisdictions specifically prohibit "evasive denials." See, e.g., Conn. Gen. Stat. Ann. § 10-47 ("where any matter of fact is alleged with diverse circumstances, some of which are untruly stated, it shall not be sufficient to deny it as alleged, but so much as is true and material should be stated or admitted, and the rest only denied."). Also consider Greenbaum v. United States, 360 F. Supp. 784 (E.D. Pa. 1973), in which the Government was the defendant:

An answer of lack of knowledge or information will usually be deemed a denial. A party, however, may be held to the duty to exert reasonable effort to obtain knowledge of a fact. . . . In the present case defendant failed to examine available, highly relevant Government documents which would have given a basis for the belief that plaintiff was not a business invitee and that the Court did not have jurisdiction under the FTCA. A fact which is denied for lack of knowledge or information may be deemed admitted if the matter is one to which the party does have knowledge or information. . . . The government will be held to an admission that plaintiff was a business invitee at the time of the accident. . .

Affirmative Defenses

Defendants may also make affirmative defenses, in which the defendant makes the claim that even if the plaintiff wins on its claims in the complaint, the defendant still wins the case for another reason. Defendants have the burdens of pleading, production, and persuasion as to all elements of affirmative defenses. For the most part, if a defendant fails to raise an affirmative defense in the Answer, the defendant has waived it unless an amendment of the Answer is allowed. This is particularly so for the list of nineteen affirmative defenses listed in FRCP 8(c). For other affirmative defenses some courts have been less strict, allowing some affirmative defenses that were not plead in the Answer absent a showing of prejudice to the plaintiff. See, e.g., Proctor v. Fluor Enterprises, Inc.,494 F.3d 1337, 1351 (11th Cir. 2007) (“The general rule of waiver is more easily applied when a party fails to set forth one of the nineteen defenses specifically listed in Rule 8(c); waiver becomes less clear when a party fails to assert affirmatively some ‘other matter’ that pre-existing federal case law has not clearly construed as ‘constituting an avoidance or affirmative defense’ under Rule 8(c).”). Still, when you are practicing you never want to put yourself in the position of having to rely on a court to let you slip in an affirmative defense. If it forbids you from doing so at a later date, your client may sue you for legal malpractice!

Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.

(3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.

(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:

(A) against a represented party for violating Rule 11(b)(2); or

(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.

(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.