Notice/ Service of Process

1. Does the service meet Constitutional standards?

- Must be "reasonably calculated" to appraise a party of
the action. Is service waived or formal? Waiver of Process
- If ? learns that actions taken are unreasonable, he
must make additional efforts.

Formal Service to Indvdls.

Formal Srvc to Corps & Entities

2. Does the method of service satisfy Rule 4(e)? If served within United States - Rule
(2)(A) - Delivering copy of summons to individual personally 4(h)(1) Rule 4(d) - Waiver
(2)(B) - leaving copy of summons @ indvl's dwlling with a person (A) - Pursuant to 4(e)(1) for serving (1) - ? has duty to avoid
of suitable age. individual; or "unnecessary expenses"
(2)(C) - delivery by law enforcement agent (B) - By delievering a copy of (2)(B) - If ? refuses to waive w/o
(1) - Following state procedures for service where claim is summpons & complaint to an officer, good cause, he will bear expenses
brought managing or general agent, or any of service
(1) - If serving ? outside forum state, ? may serve per ? 's state other agent authorized by appointment (3) - Gives 60 days to respond to
rules. or law to recieve service of process complaint if waived. Std. srvc gives
20 days instead.

Rule 4(m) - Was service filed

within 120 days of complaint?
-If not, did ? have good cause
not to?
-If no to both, suit must be
dismsissed.
Challenging Service of Process - Rule 12(b)(5)
Per Rule 12(h)(1), failure to challenge sufficient service in
the initial pleadings WAIVES ? 's right to do so in the You got served.
future.

Pleading the Complaint

?
? 's Pre-Answer Defenses
Rule 8 defines system of " notice pleading"
(a) Claim for relief MUST contain: Rule 12(h) Waiver of
(a)(1) Short statement on court's grounds for Defenses
jurisdiction, unless jurisdiction already (1) Waiver - the below defenses
established (SEE Fed. Qstn. Well-Pleaded Rl) Other pleading rules. incomplete are WAIVED if
(a)(2) Short & plain statement showing the (A) omitted from a joined
pleader is entitled to relief no need to finish prf. marshall says exam will not motion per 12(g)(2); OR
(a)(3) Demand for relief sought; may include have failure to state a claim (B) failing to either:
relief in alternative or different types of relief. (i) make it by motion under
this rule; OR
Elaborating ? rules (ii) include it in a responsive
- Prima facie case? ? does not need to show all pleading. . .
elements of a prima facie case at pleading Waived defenses - 12(b)...
stage, since this is the point of discovery. (2) lack of PJ
(Swierkiewicz v. Sorema) (3) imporper venue
- Inconsistent counts? (4) insufficient process
? 's allegations CAN be mutually exclusive (5) insufficient service of
grounds during the pleading. But he cannot process.
ultimately recover on both. (US v. Brd Harbor (2) Raising certain claims -
Commissioners) For failure to state a claim upon
- Exception. When ? knows an inconsistent which relief can be granted, to
allegation is false, it shall be struck. join a person req. by 19(b), or
- Speculation. Bell Atlantic Corp. v. Twombly to state a legal defense may be
If only legal, though potentially impermissible raised:
conduct, is alleged, absent any factual context (A) in a 7(a) pleading;
suggesting wrongdoing, the complaint should be (B) by 12(c) motion; OR
dismissed. (C) at trial.
Regarding plausibility, If there is "reasonably (3) Lack of Subject matter
founded hope" that "no set of facts" can be jurisdiction may be raised by
alleged to support claim, then dismissal is the court itself as grounds for
proper. dismissal AT ANY TIME.
- Plausibility. Ashcroft v. Iqbal.
Two step test to survive dismissal.
1) Court must accept all allegations as true
EXCEPT 'legal conclusions'
2) Only a plausible claim for relief survives.
'Conceivable' ? plausible. Inference of mere
possibility of misconduct insufficient to show
entitlement to relief.
These are to be determined by a judge's
"common-sense"