Saturday, April 29, 2017

Many, many questions and answers

Questions in bold; answers in plain text.

As for sanctions, is there a max to the amount of sanctions that a court may impose? In other words, if both apply, can a party be sanctioned under rule 11 and 1927?

Yes, because they impose different sanctions for different misconduct. The Supreme Court two weeks ago reaffirmed that a court must establish a but-for causal connection between the misconduct and whatever sanction it imposes.

Under 12(b)(7), the small paragraph says "a motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed," but can a party raise lack of subject matter jurisdiction at any time by a motion and for instance 12(b)(6) can be raised by a motion under 12(c) - both circumstances AFTER a responsive pleading?

Yes--See FRCP 12(h).

Can a third party defendant, respond with a pre-answer motion?

 See FRCP 14(a)(2)(A)

Under 15(c), we discussed how notice can be given formally by serving the amended complaint. So just to make sure I understand how this plays out, as the P, I would file my amended pleading with the court, serve it on the defendant pursuant to rule 5 and then I would argue under 15(c) that my claim in the amended pleading should not be barred as it relates back because, among the other factors, the Defendant had notice?

If it happens within the 90 days, yes.

Under rule 30(a)(2)(A)(i), are we concerned about the eleventh deposition by any one party or the eleventh deposition by "all the plaintiff" or "all the defendant" collectively?

Each party. Note the language in FRCP 30(a)(2)(A)(i)--more than ten "by the plaintiffs, or by the defendants, or by the third-party defendants."

Since we mentioned that we should point to all grounds for jurisdiction, should we include 1367 (when applicable) as back up or is that not necessary when we have original jurisdiction? I know that original jurisdiction is what we should look for first, but I am not sure if we should include 1367 as a back up because I noticed that our sample complaints sometimes do that.

Of course, if you have a claim (e.g., the defamation claims in Godin) where § 1367 may be (or turn out to be) the only way to get jurisdiction. In a Complaint, you always identify every possible basis for jurisdiction, even if they are redundant (e.g., citing both § 1331 and § 1338 for jurisdiction over the trademark claim or citing both § 1331 and the Title VII grant in a Title VII claim).

For in rem II, if I am seeking to enforce a judgment, is there any limit to what property I can attach? 

None that matters for jurisdictional purposes (it might matter for substantive purposes)

In one of my hypos from class, I wrote that the Plaintiff removed, can a plaintiff remove? I think only a defendant can based on the rule, but I just want to make sure this was not an exception of some sort.

You wrote it wrong in your notes. Only a defendant removes. If a plaintiff wants to be in federal court, she will file there in the first place.

Again, as I have been saying over and over, don't look at or rely on your notes, at least not exclusively. Go to the actual source of law and look at the text and base your notes on that--§ 1441(a) says removed "by the defendant or the defendants." So that should answer it.

When you remove to federal court, does the plaintiff have to be served pursuant to rule 4 since this is the start of litigation in federal court?

No, because it is the same litigation, just in a new court. And, again, if that was required, the statute would say so. Besides, it would make no sense to serve a plaintiff with a summons and complaint. The point of service of process is to give formal notice to someone who is not a party to litigation. The plaintiff knows about the suit--she was the one who filed it in the first place. Serving the Notice of Removal gives her notice of the move to a new court. But she already knows there is litigation.

Don't overthink these things.

If you remove after you answered in state court, does that mean you have to file another answer now in federal court or does the litigation just continue where you left off?

It continues where you left off. But consider that, since you only have 30 days to remove, it's unlikely that you will have answered in most cases. Or if you did answer, it likely is a case that became removable later. So now the question is what made it removable under § 1446(b)(3)? If, for example, it became removable because the plaintiff filed an amended complaint adding a federal claim, the defendant has 30 days to remove, so probably would not answer the amended complaint until after the case is removed.

Can a person intervene to become a Plaintiff or Defendant, or is it just an option to intervene as a Plaintiff (or vice versa)?

A party can intervene as either.