FRCP Cheat Sheet 2020 PDF

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Study guide for FRCP 2020...

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FRCP CHEAT SHEET Rule 12 – Pre-Answer Motions, Answers, and Affirmative Defenses

12(b) Motions to Dismiss: 12(b)(1) – Lack of Subject Matter Jurisdiction  MOST FAVORED DEFENSE: 12(h)(3): You can bring this up at ANY time (not limited by whether or not you brought it up in a pre-answer motion or in your answer) 12(b)(2) – Lack of Personal Jurisdiction 12(b)(3) – Improper Venue 12(b)(4) – Insufficient Process 12(b)(5) – Insufficient Service of Process  LEAST FAVORED DEFENSES: 12(h)(1): If you are going to bring these up, you have to do so either in a pre-answer motion (12(g)(2)) OR in your answer if you haven’t already made another 12(b) motion (or in an amendment to your answer within the Rule 15(a) twenty-one day window). If you don’t bring any of these up in a motion or your answer (having filed no pre-answer motions before), they are waived and you can never bring them up.  **UNLESS, the motion was not available to you when you filed the original one 12(b)(6) – Failure to state a claim upon which relief can be granted 12(b)(7) – Failure to join a party under Rule 19  MORE FAVORED DEFENSES: 12(h)(2): You can raise these in a 12(b) pre-answer motion to dismiss, in your answer, in a 12(c) motion for judgement on the pleadings (postanswer motion), or at trial. (not limited by whether or not you brought it up in a preanswer motion or in your answer) 12(e) – Motion for More Definite Statement  Parties can use this instead of a 12(b)(6) to motion for a more a definite answer  Must be motioned BEFORE they give a responsive pleading (answer)  Most attorneys will just use 12(b)(6) though and try to get the claim dismissed

(Rule 15 on next page)

Rule 15 – Amendments to Pleadings

15(a) – Amendments before Trial: 15(a)(1) – As a Matter of Course  (1) May amend original pleadings ONLY ONCE without leave (permission) from the court if within 21 DAYS after service (of plaintiff’s complaint to the defendant); OR  (2) If original pleading requires an answer, may amend within 21 DAYS after service (of defendant’s answer to the plaintiff) or within 21 DAYS after a motion to dismiss (12(b)), motion for more definite statement (12(e)), or motion to strike (12(f)), whichever is earlier 15(a)(2) – By Leave (Permission) of the Court/Opposing Party ☑  If 21 days has passed, you can get permission from the opposing party to amend or get permission from the court – it’s up to the court’s discretion to let you amend “when justice so requires.” o Factors: (1) undue delay, (2) bad faith/undue prejudice, (3) reasons for amending  Policy Rationale: narrows issues for discovery, discovery hasn’t happened yet so this doesn’t waste money

15(c) – Amendments after SOL Have Run: 15(c)(1) – Relation Back �  If you can’t amend via 15(a)(1) or (15(a)(2), you can amend if your amendment “relates back” to the date of your original claim: o (A) Statute Allows: the law that provides the applicable SOL allows relation back o (B) Amendments to Claims: new claim arising out of the same conduct, transaction, or occurrence set out – or attempted to be set out – in the original pleading  Rationale: the original claim needs to have given the defendant notice of the claims now being asserted o (C) Amendments to Parties: new claim arises out of same conduct, transaction, or occurrence set out in original pleading and the party received notice within 20 days or the party knew/should have known  If you’re outside the statute of limitations you should file a 15(a)(2) motion AND a 15(c) motion

Rule 18, 20 on next page

Rule 18 – Joinder of Claims:   

*Need SMJ over the claim and PJ over the defendants before a joinder can happen (if no SMJ (DJ or FQ), then look to Supplemental Jurisdiction – if no SJ, then no joinder). Definition: bringing several claims against SAME party together Policy Rationale: judicial economy, efficiency

18(a) – Party asserting claim, counterclaim, crossclaim, or third-party claim may join as many claims as it has against a defending party. 18(b) – This is OK even if the claims arise out of completely unrelated events  � � Joinder of unrelated claims against same ∆ allowed via Rule 18 (if you don’t you can still bring them up later)  � � No joinder of related claims against same ∆ under Rule 18 (must assert them in the original pleading or you are barred forever from joining them)  *It’s better to argue that your claims are less related because then you have options!

Rule 20 – Permissive Joinder of Parties:    

*Need SMJ over the claim and PJ over the defendants before a joinder can happen (if no SMJ (DJ or FQ), then look to Supplemental Jurisdiction – if no SJ, then no joinder). Definition: bringing claims against SEVERAL PARTIES together Policy Rationale: judicial economy, efficiency *For required joinder, see Rule 19

20(a)(1) – Motions for Joinder of a Plaintiff (by original Plaintiff) 20(a)(2) – Motions for Joinder of a Defendant (by original Plaintiff)  These parties can sue together if: o (1) They are asserting claims that arise out of the same transaction or occurrence (related claims); AND o (2) Any common questions of law/fact involve all plaintiffs/defendants  � � Joinder of parties if related claims (allowed, but not required)  �� No joinder of parties if their claims are unrelated to the original claim 20(b) – Escape Valve for Joinder (Rule 42(b) does the same thing)  Judge may separate trials to protect a party from embarrassment, delay, expense, or other prejudice that arises from adding someone else to the claims

Rule 13 on next page

Rule 13 – Counterclaims & Crossclaims



*If no stand-alone SMJ, invoked SJ (§ 1367)

Counterclaims: 

Definition: a claim versus an opposing party after they asserted a claim against you

13(a) – Compulsory Counterclaim: “Use It or Lose It” �  A pleading must state a counterclaim at the time of service that is related (arising out of same transaction or occurrence) AND does not require adding another party over whom the court cannot acquire jurisdiction  Similar to Rule 18 – Joinder of Claims 13(b) – Permissive Counterclaim: “If You Want To” �♀  A pleading may state a counterclaim at the time of service that is not related (not arising out of same transaction or occurrence)  Similar to Rule 18 – Joinder of Claims

Crossclaims: 

Definition: a claim versus a party of your own side (i.e. ∆1 sues ∆2)

13(g) – a party may assert a crossclaim against a co-party arising from same transaction or occurrence that is subject matter of the original action or counterclaim � �

Rule 14 – Impleader Claims    

Definition: claim by a defendant against a non-party who “is or may be liable” (contribution to damages / indemnification for all damages) Terminology: third-party brought in by ∆ = third-party defendant; ∆ bringing in the 3P∆ = third-party plaintiff Third-party defendants also need SMJ and PJ to be brought it – can use SJ for SMJ Impleader claims are contingent upon original claims (against π and ∆)

14(a)(1) – defendant may implead a non-party for all or part of the claim without permission within 14 days of serving their original answer to the plaintiff (if after 14 days must use motion to get permission from the court)  This is not an “it’s you, not me” game of pointing fingers – if that’s the case, you need a Rule 13(g) crossclaim (see above)  Third-party defendant can then respond with defenses (R. 12), a counterclaim, or crossclaims against ∆ and can assert claims against the original plaintiff arising out of the same transaction/occurrence (related).  Third-party plaintiff (original defendant) can also join other claims against the third-party defendant asserted by another party (via Rule 18)

Rule 19 – Required Joinder:

19(a)(1) – When joinder is feasible, an indispensable party must be joined:  Indispensable party: o (A) without them the court cannot accord complete relief to the existing parties or (B) the person claims an interest relating to the subject of the action with conditions that might:  (i) impair/impede their ability to protect the interest or (ii) create double obligations 19(b) – When joinder is not feasible, the court must decide to move case forward or dismiss:  Joinder not feasible if: o Absentee not subject to PJ where suit is brought o Joinder of absentee with destroy complete diversity (SMJ) o Joinder of absentee makes venue improper (if from different state than ∆)  Factors the court will analyze (Good equity & conscience test): o Risk of prejudice to absentee or others if case goes forward o Ways to lessen prejudice by fashioning judgement o Whether judgement rendered in their absence would be adequate o Whether plaintiff will have adequate remedy if action is dismissed for nonjoinder

General Table of Statutes and Requirements on next page General Table of Statutes and Requirements

Issue Subject Matter Jurisdiction

FQ

Statute/Rule/Case 28 U.S.C. § 1331

Requirements Substantial federal question or complete pre-emption

DJ

28 U.S.C. § 1332

(1) Complete Diversity (2) Amount in Controversy

28 U.S.C. § 1367

(1) Original SMJ? (2) Under § 1332 (DJ)? (a) 1367(a) satisfied? (b) 1367(b) withhold? (3) Ct. choose to exercise? (1) Only look at citizenship of named plaintiff (2) Only named plaintiff must have nec. amount (1) Notice (2) Statutory Amenability (3) Constitutional Amen.

Supplemental Jurisdiction

28 U.S.C. § 1367(b) / Rule 23 Supplemental Jurisdiction in Class Action Suits

Personal Jurisdiction

Traditional or Internat’l Shoe Test 28 U.S.C. § 1391

(1) All ∆’s resident of state (2) Sub. part of events there (3) Fallback when no others

Proper OV

28 U.S.C. § 1404

Improper OV

28 U.S.C. § 1406

1404 – public and private interest factors

Venue

Transfer of Venue

28 U.S.C. § 1441, 1446 Removal

(1) Only ∆s can remove (2) If no complete diversity, no removal (3) Within 30 days of service of removable claim...