Civ Pro 2 Notes 9/2/04


Think of Rule 12 this way: you receive a complaint.Hereís what you should do: think about the universe of possible things you might be able to say about the complaint.Do you have a plausible subject matter jurisdiction argument?What about personal jurisdiction?What about venue?What about process or service of process?Is there a claim?Are there parties that need to be joined?Could you get judgment on the pleadings?Think about all the stuff.Then you have to figure out what you must do now in order to not waive it.Can you save some of the stuff for a motion for summary judgment under Rule 56?You can present challenges in a lot of different ways.There are strategic choices that you can make, and there are bad choices you can make.The Rules are designed to encourage you to do certain things first.If you donít do them first, youíre going to lose them.You must use these defenses either before your answer or in your answer.If you make a Rule 12 motion, you lose everything else unless itís saved by Rule 12(h).That part explicitly gives us the hierarchy.


Rule 15 tells you that you can amend your pleading once before the answer comes back.But that doesnít help the defense.If you notice your mistake quickly, youíll be able to catch it.But the amendment option wonít help you much in general.




This is stuff you get to do as a defendant after the complaint is filed.We know something about answers from Rule 12 talking about the interrelationship between Rule 12 motions and when your answer may be filed.When you file Rule 12 motions, it delays your answer date.So you file a Rule 12 motion to avoid having to answer.You have to file an answer within 20 days of being served if you donít file a Rule 12 motion.20 days is a short amount of time!You always need to check right away when the answer date is.But the Rules provide a way to extend this date.You get 60 days to answer if you waive service of process under Rule 4(d).Pretty much everybody waives service of process these days.


You have a duty, as a defendant, to avoid unnecessary service costs.The Rules require people who get sued to avoid unnecessary service costs.One way to do this is to waive the technicalities of service.The defendant also has to pay for service if they donít waive it.Thereís both a carrot and a stick!Also, waiving service doesnít waive any of your defenses (except of course process and service of process).So thereís nothing to lose!Rule 4(d) tells you how you go about doing this.You attach a waiver of service form to the complaint, ask the defendant to send it to you, and thatís it.You donít need to hire the sheriff or a process server.Nowadays, in corporate litigation, this is mostly done by counsel.You have a reasonable time, at least 30 days, to return the waiver.You have 60 days to respond!A plaintiff might choose not to use this, though, if theyíre in a jurisdiction where the state statute of limitations is about to run out.You may have to be personally served before the clock starts.As a plaintiff, worry about the statute of limitations.




So we have to do our answer 20 days or later.In the answer, weíll do denials and affirmative defenses.Denials are back in Rule 8.You can either admit or deny the averments.If you donít have enough information and youíre not sure, you can say that too.When you can only admit or deny part of the allegations, you must do so piece by piece.Thatís where the case comes from, and this is why you try to delay doing an answer.Itís a painstaking process!If you fail to deny, you automatically admit!So be careful!


Zielinski v. Philadelphia Piers, Inc.


Zielinski is on a forklift and he gets hit by Johnson.Itís a forklift wreck!Zielinski sues PPI.The other forklift said ďPPIĒ right on the forklift!But the problem is that PPI isnít doing that business anymore!Itís CCI!Thereís still a relationship between the companies, but technically CCI would have been liable under tort law for the actions of its employee.Basically, the wrong company has been sued!Whatís PPIís answer to this allegation?They deny the whole thing!The problem is that the allegation contains a lot of stuff.Of course youíll deny that your employee was negligent.They should have denied the first part, that they owned, operated and controlled the forklift!Then the plaintiff would have realized his mistake and everyone would have been happy.But PPI is sloppy and doesnít take the individual allegations separately.That perpetuates the plaintiffís misunderstanding.


In discovery, they found out that notice was received the same day as the accident.That seems to suggest that they sued the right person.They gave the information to the insurance company after a brief investigation.They werenít trying to deceive the plaintiff.There was no bad faith.They were answering the questions to the best of their ability and not trying to deliberately hide any information.


So the accident was on February 9th.The complaint was filed on April 28th.The answer was filed in May, discovery in June, and a pre-trial conference way later, when theyíre outside of limitations: the right person to be sued can no longer be sued!The court sticks it to the wrong person!Thatís pretty amazing!The court will allow the wrong defendant go to trial!The judge will tell the jury that the defendant admitted that they owned the forklift!This is absolutely untrue and everyone except the jury will know it.How can that be?Whereís the justice in that?


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