Civ
Pro 2 Notes
Think
of Rule 12 this way: you receive a complaint.
Here’s 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 don’t do them first, you’re 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 it’s 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 doesn’t help the defense. If you notice your mistake quickly, you’ll be
able to catch it. But the amendment
option won’t help you much in general.
Answer
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 don’t 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 don’t waive it. There’s both a carrot and a stick! Also, waiving service doesn’t waive any of
your defenses (except of course process and service of process). So there’s 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 that’s it. You don’t 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 they’re 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.
Denials
So
we have to do our answer 20 days or later.
In the answer, we’ll do denials and affirmative defenses. Denials are back in Rule 8. You can either admit or deny the
averments. If you don’t have enough
information and you’re 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.
That’s where the case comes from, and this is why you try to delay doing
an answer. It’s 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.
It’s a forklift wreck! Zielinski
sues PPI. The other forklift said “PPI”
right on the forklift! But the problem
is that PPI isn’t doing that business anymore!
It’s CCI! There’s 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! What’s PPI’s answer
to this allegation? They deny the whole
thing! The problem is that the
allegation contains a lot of stuff. Of
course you’ll 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 doesn’t take the individual allegations
separately. That perpetuates the plaintiff’s
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 weren’t 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 they’re outside of
limitations: the right person to be sued can no longer be sued! The court sticks
it to the wrong person! That’s
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? Where’s the justice in that?