Federal Jurisdiction & Procedure.docx

Iv may plead alternatively or hypothetically may

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iv. May plead alternatively or hypothetically – may state as many separate claims/defenses as have. 5. Jury trial demand a. Right to jury trial – 7 th Am. guarantees in all actions exceeding $20 amount in controversy; available when remedy sought would be available at common law (ex. monetary) or Congress provides. b. Jury instructions – at close of evidence, party may file written request for jury instructions; objection to instruction given must be made with specific reasons before jury retires to deliberate (failure precludes appeal based on improper jury instruction, unless instruction was plain error ). c. Jury trial demand – waived unless properly demanded; may demand on any “issue triable of right by a jury” i. Serve other parties written demand (may be included in pleading or made separately) within 14 days after last pleading directed to the issue is served . ii. Court discretion – may consider demand even after time limit. iii. File written demand within reasonable time after service. 6. Amendments to pleading a. Amend pleading once as matter of course – within 21 days after serving it (if responsive pleading required – may amend w/in 21 days after earlier of service of responsive pleading or service of R12(b), (e), or (f) motion). i. After first amendment or after 21 days – with leave of court or party consent; (liberal amendment if no party prejudice). b. Relation back of amended pleading to original pleading – an amendment to a pleading can r elate back to the date that the original pleading was filed (assuming original complaint service properly made w/in 120 days of filing complaint). i. Amendment to add new claim – relates back to date of filing if it arises out of same conduct, transaction or occurrence as the original pleading. 1. So even amendment time barred – still timely if would have been timely at original complaint filing. 2. Legal fiction – the “notice pleading” of original complaint alerted ∆ sufficiently. ii. Amendment to add new ∆/change name - 3 requirements (relation back required if met): 1. Amendment asserts claim/defense that arose out of conduct, transaction, or occurrence set out in original pleading; 2. Within 120 days of filing of suit (time for service), party to be added received notice of the action such that it will not be prejudiced in defending on the merits; 3. Within 120 days of filing of suit, party to be added knew/should have known that action would have been brought against him but for mistake concerning proper party’s ID. 7. Rule 12(b) motions to dismiss ** a. 7 defenses in Rule 12(b) that may be asserted by motion or in Answer : i. 12(b)(1) lack of SMJ never waived; may raise at any time during litigation. ii. 12(b)(2) lack of PJ iii. 12(b)(3) improper venue – waived if ∆ fails to raise either in motion for dismissal or transfer from improper to proper under §1406).
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  • Spring '14
  • CatherineLacroix
  • Common Law, Supreme Court of the United States, federal court, SMJ

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