CIVIL PROCEDURE 2002 Class 8 September 13, 2002 Professor Fischer

Wrap-Up of Last Class 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))?

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))

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?

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

WAIVER OF SERVICE Waiver is a way of notifying the D of the action while waiving formal service It’s part of the ‘how’ question The governing provision is FRCP 4(d). You should be familiar with it. 2 important questions: (1) HOW do you waive? (2) WHY waive service?

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

WAIVER OF SERVICE RULE 4(d): HOW HOW DOES P REQUEST A WAIVER OF SERVICE? P sends D by “reliable means” copy complaint, 2 copies of a notice & request for waiver form containing specified information about the action and date of waiver request/due date for waiver (must be at least 30 days if D in US);a request that the D waive formal service of the summons and complaint upon him; prepaid means to respond. If D returns the request, that waives formal service. See forms in online FRCP at

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

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

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

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) For a proof of service form for the U.S. District Court for the Central District of California, see: 50f03ce1d c a/8f448f69c f625/$FILE/Cv-01.pdf

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.

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

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

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.

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

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)

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) READ 7(b) for next class

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: and see judges page at: (for individual practices of each judge, click on individual judge’s name)

Questions for Pre-answer motions When can you make a pre-answer motion? What possible pre-answer motions can be made? What is the burden of proof required to succeed on a pre-answer motion?

Bower v. Weisman (CB p. 210) The parties: Sachiko Bower Frederick Weisman Who is the plaintiff? Defendant? What court are we in?

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

Bower v. Weisman What legal arguments does Weisman make in support of his pre-answer motions?

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

Bower v. Weisman What legal arguments does Bower make?

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

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

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