January 20th Notes

Litigation Basics
January 20, 2010

Key Dates
Jan 28th:     -Return of last year's students
                      -Complaint & Answer Due
Feb 11th:      -Midterm
Feb 25th:    -Discovery Project Due
March 3rd:    -Electronic Discovery with Greg Shelton (will be on the final)
March 4th:    -Career Night Pizza and Jobs with Law Dawgs and Guests
                         -Mediation Brief Due
March 11th:    -Final


Reviewing the Complaint     page 137
-Where is this case?
    -Federal Court
        -28 U.S.C § 1332 
        -complete diversity
        -dispute of 75K
        -Why is it hard to get into federal court?     
            -limited scope, subject matter jurisdiction
-Caption
    -A partnership is not a legal person, why is it mentioned?
        -showing the nature of the harm was done as partnership
        -but must sue the corporation

-"Plaintiffs allege against each and every defendant:"
    -this statement does not have to be included if it is true
    -mention a statement if it is not true

-Can bring case in NV and ID
    Why?    Defendants from there and incident occurred there.
    Why pick NV?  CA is closer to NV.  And Erie doctrine (where the court is located) must follow the law there. 

Erie Doctrine
    -Choice of law w/ diversity
    -mandating that a federal court in diversity jurisdiction must apply state substantive law
    -there is no Federal common law
    -Federal courts must apply Federal law for procedural matters

Plaintiff: CA
Defendant: Rice  NV
Defendant: Para  ID
Defendant: Forr  NV
Incident: NV 

-Plaintiff is in CA, why did they not use the long-arm statute to bring them to CA?
    -No minimal contacts with CA, the swindle happened in NV.

Two styles of Complaint Drafts
1. First Cause of Action is long
    -allege basic facts in the actions
    -1-5 paragraphs apply to all causes of actions
    -paragraph 11. incorporates with reference

2. Causes of Action focused
    -allege basic facts first
        -venue, jurisdiction, capacity
    -prior to actions discussed
   
***Each cause of action must stand alone. ***
    -each must be its own separate complaint
    -each cause of action can stand alone in case others are thrown out
    -failure to incorporate by reference

Why did they not include paragraph 8. in the incorporation for 11. ?
    -paragraph 8 is about fraud and should not mix with negligence
    -fraud is made with knowledge of falsity
    -negligence it did not know

Why did they include paragraph 8. in the incorporation for 16.?
    -fraud is fraud and fraud in confidentiality is also a fiduciary duty

Numbering Systems
1. Sequential numbering
1-20
2. Sectional numbering  (clarity in discussions)
-First Cause of Action
1.1
1.2
-Second Cause of Action
2.1
2.2

-Every cause of action has its own prayer
    -asking for different things
    -even if it's the same for all, write it out

-You only get one recovery.  But items may be stricken.

RCW 4.28.360
Personal injury action — Complaint not to include statement of damages — Request for statement.
In any civil action for personal injuries, the complaint shall not contain a statement of the damages sought but shall contain a prayer for damages as shall be determined. A defendant in such action may at any time request a statement from the plaintiff setting forth separately the amounts of any special damages and general damages sought. Not later than fifteen days after service of such request to the plaintiff, the plaintiff shall have served the defendant with such statement.

Caption
-name of the court, plaintiffs, defendants, and title of document

Causes of Action
-various jurisdiction and factual allegations
1. Jurisdiction and Venue
2. Allegations on status and capacity
3. Agency Allegation: claims one of more defendants were agents or employees of one or more of the other defendants.
4. Basis of Lawsuit and damages suffered

Pleading on Information and Belief
-alright to allege things you do not know but think are true

Incorporate by Reference

Prayer
-specific request
-"Wherefore plaintiff"

Subscription
-always sign the complaint
-Federal CR11 making representations of certain facts

Request for Jury
Federal CR 38(b) -10 days after service of the last pleading
WA CR 38(b) - at or prior than the time the case is set for trial (very different)

Verification
-seeking injunction relief must be sworn under penalty of perjury

Disclosure Statement by Nongovernmental Corporate Party
-Federal CR 7.1
-if the plaintiff is a nongovernmental corporation they must file this disclosure
-owns 10% of more of its stocks or states that there is no such corporation

Exhibit
-attach copies to some complaints
-Federal rules allow-
Called:
Exhibit 1  when from defendant
Exhibit A when from plaintiff

Cover Sheet
-in house document the court uses for the file

Filing a Complaint
-giving the paper to the court
-then given a docket number
-$250 to file, free to answer (can waive fee if needed)

Summons
-notice delivered by authorized person to inform person of a lawsuit against him/her
-original summons is not filed with court kept until defendant is served
-Originals stay with the court
-state complaints must be served

WA CR 4
-WA does not require you file your complaint prior to serving
    -may be that way to increase want to settle out of court
    -you must serve complaint and summons together
WA CR 4.1(b)(2)
    -demand to file with court within 14 days of being served or it is void
   
Service of Complaint
-there is one good one and three bad ones
    -the others are not reliable for due process
-Federal Court copy of complaint and summons should be served within 120 days of filing complaint

1.  Personal Service of Process
    -the best way
    -20 days
    -notice of lawsuit that is delivering a copy of the paper to that party
    -Process service: fills out the receipt (proof of service) that they were served
        -can not leave papers, need to know person is there
-do not attempt personal service once and give up (at least 3 attempts at different times and different locations)

2. Substitute Service
    -house of usual abode
    -with a person of suitable age (14) and discretion
    -14 and over you are served
    -under 14 you and your parents are served
    -resides there
    -20 days


Use only if they are out of state, searched for them and they are in hiding:
3. Service by publication
RCW 4.28.100, 100 Service of summons by publication — When authorized.
    -constructive notice
    -60 days
    -File a motion to authorize publication (order in advance)
        -show you have tried other means
        -private investigator
        -prepares you for the challenge
    -Also send copy to last known address

4.  Service by Mail
    -acceptable if you know they are gone
    -90 days to answer, usually for out of country

Corporations Served
    -serve to their registered agent
    -president, secretary, cashier, managing agent
    -service Secretary of State  (Sam Reid)

Serving Government   
-serve the Attorney General at his office (Rob McKenna)

Serving Minor
-over 14 minor and guardian
-under 14 just guardian
-no guardian, serve employer or adult they live with

Serving Non-WA domiciliary (not resident)
-long arm statute
-in WA, if you are wrong about statute you can be held liable for cost to bring them to WA
-personal service only with exception for MVA can be served on Secretary of State

Serving out of Country
-follow their law
-WA CR4(i)

Waiver of Service
-a defendant in Federal can waive the formal service of process
-plaintiff sends by first class mail: the compliant, a notice explaining waiver, and consequences of failing to waive service and a waiver form to sign

Advantages
-60 days to answer
-not billed for it (if you refuse you pay for the service)

Amending the Complaint 
-90 days from filing complaint to serve
    -as many times as you want as long in statute of limitations   
    -Statute of limitations (varies usually 2years or more)
    -Starts service limitations of 90days
-can amend even after statute of limitations runs
-relates back to the original date of filing

Stipulation
-an agreement between lawyers on opposite side of a lawsuit

Federal CR 15
-amendment relates back to original filing date only when the newly named party has received notice of action within 120 days of its being filed

Chapter 5   Review Questions
1. What is the purpose of pleadings?
2. What matters are generally contained in a complaint?
3. What factors should be reviewed before determining who will be named as parties to a lawsuit?
4. What is the difference between notice pleading and code pleading?
5. What are the types of remedies that may be requested from a court?
6. What are the steps in drafting a complaint?
7. How are complaints filed?
8. What is a summons?
9. How is service of process accomplished?
10. What is the procedure for amending a complaint?


Chapter 6  page 162

example of complaint  page 162

Responding to Complaint
1. Contest the facts of the case
2. Challenge the action on some legal basis
    -Motion or Demurrer
3. Do Nothing
4. Settle

-Federal Court 20 days to Answer
RCW 4.16.1.70
Federal CR 12
Federal CR 4(d)(2)
RCW 4.28.100

-WA Notice of Appearance
    -appears on behalf of defendant
    -to avoid default and get more time when you can not get a stipulation
    -can not take a default against you without a notice motion

-30 days to RESPOND (not just ANSWER) is a good way to state this otherwise there are other challenges
    -may want to challenge pleading that way you can challenge pleading not just answer

Open Stipulation
-agreement between attorneys that a defendant need not answer a complaint within the time directed by law and need not answer until specifically notified by the plaintiff to do so
-bad because they can just keep going on and on
-better to give a timeline and then extend if needed


HOMEWORK
--Court Rule 8