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Author Topic: Specific Civ Pro Questions  (Read 2051 times)

intel

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Specific Civ Pro Questions
« on: December 11, 2007, 01:23:33 PM »
1. Can someone explain FRCP 4k(1)(C) "the nationwide long arm statute" by giving me a practical example of when it might be used?

2. When exactly do you style a 12b6 and 12b7 motion as a 12c motion?

3. When can a P amend his complaint to add a PARTY under the relation back rule of 15? I cannot seem to effectively parse this language.

Thanks.

gershonw

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Re: Specific Civ Pro Questions
« Reply #1 on: December 11, 2007, 01:40:41 PM »
answer to #2 is easy

12c is when you want the judge to look at both the answer and the complaint in the dissmisal motion.
12b(anything) is when your asking that the judge dismiss without even looking at your asnwer...

not substanitally diffrent ideas there though

answer to 1 is also not hard

basically federal personal juristiction is limited to what the state court could assert in terms of personal jurstiction in that area. (plus fed courts get the 100 mile bulge disscussed in 4k) now obviously...even without 4k the federal court would be limited to only PJ that is conittuinal...but 4k tells us that the federal court is limited by the long arm statue for the state in which they sit. (again plus the 4k 100 mile bulge)

as for 3-rule 15doesnt really put limits on joining a party beyond the joinder and suplemental juristiciton ones----

the talk about other parties in rule 15 is when the sttue of limitations has run and you misdentifed the party the first time and now want to amend to sue the right party the second itme around..but after statue has run...

intel

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Re: Specific Civ Pro Questions
« Reply #2 on: December 11, 2007, 03:28:48 PM »
"answer to 1 is also not hard

basically federal personal juristiction is limited to what the state court could assert in terms of personal jurstiction in that area. (plus fed courts get the 100 mile bulge disscussed in 4k) now obviously...even without 4k the federal court would be limited to only PJ that is conittuinal...but 4k tells us that the federal court is limited by the long arm statue for the state in which they sit. (again plus the 4k 100 mile bulge)
"

this is all explaining 4k1A isn't it? i am specifically concerned with 4k1C which says "service establishes PJ over a defendant when A)...B)...C)authorized by a federal statute." i could be wrong but it seems like a worthy distinction to make.

"the talk about other parties in rule 15 is when the sttue of limitations has run and you misdentifed the party the first time and now want to amend to sue the right party the second itme around..but after statue has run..."

right but what does the part about received notice of the action and knew or should have known that the action would have been brought against it BUT FOR a mistake in identity." (15(c)(1)(C)(i-ii)).


gershonw

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Re: Specific Civ Pro Questions
« Reply #3 on: December 11, 2007, 07:00:11 PM »
if a federal satuate wants to come along and tell the distrcit courts they have more PJ than under 4ka than thats fine.

there isnt one for the MOST part (perhapps specifc statues out there expend statutory PJ for distict  ccourts in certin types of litgation....and thus 4ka is all that maters.

4kc obviously couldnt authorize expantion of the contituinal limits..only the statutory limits that the court is under by 4ka.
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"right but what does the part about received notice of the action and knew or should have known that the action would have been brought against it BUT FOR a mistake in identity." (15(c)(1)(C)(i-ii))."

its one of the ways under 15 that an amendment to pleadings relates back after it has passed statue of limtiations.  if the other guy knew or should ahve know i just got the worng D..then he he cant say oh the statue ran..your a fool and now cant amend your pleadings to bring me in.

LegalMatters

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Re: Specific Civ Pro Questions
« Reply #4 on: December 12, 2007, 03:07:35 PM »
It has to be related to the original complaint too.

gershonw

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Re: Specific Civ Pro Questions
« Reply #5 on: December 12, 2007, 07:05:00 PM »
It has to be related to the original complaint too.

yes thats always a precodition of 15 if the statue has run