9.1 Civil Litigation Terminology & FRCP Overview

The Paralegal CORE Competency Exam (PCCE) tests civil litigation as a labeling-and-deadline skill. Domain 1 asks you to name the party, name the document, and name the Federal Rules of Civil Procedure (FRCP) cluster that governs the next step. This chapter starts the case: terminology, jurisdiction and filing, parties, and service of process. Chapter 10 continues through discovery, evidence, trial, judgment, and appeal.

Plaintiff, defendant, cause of action, and claim

A federal civil action commences when the plaintiff files a complaint with the court (FRCP 3). Filing, not service, starts the action — though Rule 4(m) still requires timely service, and a statute of limitations may have its own service or filing rule. The plaintiff is the party who asserts a claim for relief. The defendant is the party against whom that claim is asserted. Those caption labels stay put even if the defendant later files a counterclaim. Do not rename the parties appellant and appellee until someone actually appeals.

A cause of action is a recognized legal theory — negligence, breach of contract, a Title VII claim — whose elements, if proved, entitle the plaintiff to a remedy. A claim is the pleading unit that asserts one or more theories against a defendant. FRCP 8(a) requires three things in a claim for relief: a short and plain statement of the grounds for the court’s jurisdiction, a short and plain statement of the claim showing the pleader is entitled to relief, and a demand for the relief sought. Federal practice is still called notice pleading, but after Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal the complaint must allege facts that make the claim plausible, not merely conceivable. Threadbare recitals of the elements, supported only by conclusory labels, do not suffice.

Counterclaim, crossclaim, and the third-party claim

Keep three “new claim” words apart. A counterclaim is a claim the defendant (or another defending party) asserts against an opposing party — usually the plaintiff. FRCP 13(a) makes a counterclaim compulsory if it arises out of the same transaction or occurrence as the opposing party’s claim and does not require adding someone over whom the court cannot acquire jurisdiction. Fail to plead a compulsory counterclaim and you generally lose it. A permissive counterclaim (Rule 13(b)) does not arise out of that same transaction; it may be brought in the pending action but is not forfeited if omitted.

A crossclaim (Rule 13(g)) is a claim by one party against a coparty — defendant against co-defendant, or plaintiff against co-plaintiff — if it arises out of the same transaction or occurrence as the original action or a counterclaim, or if it relates to property that is the subject of the original action. Exam trap: a claim against the person who sued you is a counterclaim. A claim against someone on the same side of the “v.” is a crossclaim.

A third-party claim (impleader under Rule 14) is different still. The defending party brings in a nonparty who may be liable to the defending party for all or part of the claim against it. Section 9.3 covers the caption change. Do not call a Rule 14 claim a crossclaim.

Pleading versus motion

A pleading is one of the documents Rule 7(a) lists:

• a complaint
• an answer to a complaint
• an answer to a counterclaim designated as a counterclaim
• an answer to a crossclaim
• a third-party complaint
• an answer to a third-party complaint
• and, if the court orders one, a reply to an answer

That list is closed. A motion is a request for a court order (Rule 7(b)). A motion to dismiss, a motion for a more definite statement, a motion to strike, a motion for summary judgment, a motion to compel, and a motion in limine are motions, not pleadings. The exam loves to call a Rule 12(b)(6) motion a “responsive pleading.” It is not. It is a motion that can postpone the answer.

Summons, complaint, answer, and default

• The complaint is the plaintiff’s opening pleading. It is filed with the court and then served with the summons.
• The summons is the court’s process. It notifies the defendant of the action and of the time to appear and defend, and it warns that failure to appear will produce a default judgment for the relief demanded. Rule 4(a) requires, among other things, the court’s name, the parties’ names, a direction to the defendant, the name and address of the plaintiff’s attorney (or the plaintiff if unrepresented), the time to appear and defend, the default warning, the clerk’s signature, and the court’s seal.
• The answer is the defendant’s responsive pleading. It admits, denies, or states a lack of knowledge or information sufficient to form a belief (Rule 8(b)). It must also plead affirmative defenses (Rule 8(c)) — statute of limitations, waiver, estoppel, res judicata, and the rest of the Rule 8(c) list — or those defenses may be waived. Rule 12(a)(1)(A)(i) generally gives a defendant 21 days after being served with the summons and complaint to serve an answer. If the defendant timely waived service under Rule 4(d), the clock is 60 days after the request was sent (90 days if the request was sent to a defendant outside any judicial district of the United States). The United States, a U.S. agency, or a U.S. officer or employee sued in an official capacity generally has 60 days (Rule 12(a)(2)–(3)).
• Default is the failure to plead or otherwise defend. Rule 55(a) directs the clerk to enter the party’s default when that failure is shown by affidavit or otherwise. Default judgment is a separate step under Rule 55(b) — by the clerk on a sum certain, or by the court in other cases. Do not treat “default” and “default judgment” as synonyms, and do not enter judgment against a minor or incompetent person without the protections Rule 55 requires.

Rule 12(b) catalogs seven defenses that may be asserted by motion before a responsive pleading: (1) lack of subject-matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficient process, (5) insufficient service of process, (6) failure to state a claim upon which relief can be granted, and (7) failure to join a party under Rule 19. Rule 12(h) is the waiver rule. Lack of subject-matter jurisdiction can be raised at any time, including by the court on its own. Lack of personal jurisdiction, improper venue, insufficient process, and insufficient service are waived if omitted from a pre-answer motion or, if no such motion is made, from the responsive pleading (or an amendment allowed as a matter of course).

Rule 15 governs amendments. A party may amend once as a matter of course within 21 days after serving the pleading, or, if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier (Rule 15(a)(1)). Later amendments need the opposing party’s written consent or the court’s leave, which should be freely given when justice so requires (Rule 15(a)(2)). Rule 15(c) is relation back — when an amended claim or a newly named party is treated as if it had been in the original pleading for limitations purposes.

Structure of the Federal Rules of Civil Procedure

Memorize the clusters, not every subsection:

Rule 1 says the rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action. Rule 11 requires a signature certifying that a filing is not presented for an improper purpose and that legal and factual contentions have — or will have after a reasonable investigation — support. Paralegals draft; the attorney signs. Rule 6 is how you count days, including how weekends, legal holidays, and the last-day rules work. Do not invent “add three days to everything.” The three extra days in Rule 6(d) attach only after certain kinds of service listed in that rule.

Federal versus state procedure

The PCCE tests federal and general principles, not one state’s code of civil procedure. When the stem says “federal district court,” use the FRCP numbers in this chapter. When the stem is silent, still prefer the federal/general rule the blueprint teaches, and flag that states vary rather than invent a local-rule day count as if it were national. Many states have borrowed FRCP numbering; many have not. A state “20 days to answer,” a county cover-sheet local rule, or a judge’s unpublished standing-order page limit is local. Local rules and standing orders matter in practice — Chapter 5 taught you to stack the national rule, the local rule, and the standing order — but they do not replace Rule 12(a)’s 21-day default or Rule 4(m)’s 90-day service period on a national exam.

The paralegal’s role in tracking rules

At the start of a case the paralegal identifies the governing rule set, calendars the clock the rule actually creates, and keeps the caption and the party list accurate.

1. Confirm the forum (which district, which judge) and pull the FRCP, that district’s local rules (authorized by Rule 83), and the assigned judge’s standing order.
2. Identify every document by its Rule 7 name: pleading or motion.
3. Docket Rule 12(a) answer dates, Rule 4(m) service-of-process dates, Rule 15 amendment windows, and any Rule 16 scheduling-order dates once the court sets them.
4. Never invent “30 days for everything.” Read the rule that creates the deadline, then compute time under Rule 6.

Worked path. A partner emails: “We were served yesterday with a federal complaint and summons. Draft an answer and a motion to dismiss for failure to state a claim, add a claim against the co-defendant for indemnity, and add a claim against the plaintiff for an unpaid invoice from a different job.” Translate before you type. The 21-day Rule 12(a) clock is running. The failure-to-state-a-claim paper is a Rule 12(b)(6) motion, not a pleading. The indemnity claim against the co-defendant is a crossclaim (Rule 13(g)). The old-invoice claim against the plaintiff is a permissive counterclaim (Rule 13(b)) unless the facts actually arise from the same transaction or occurrence. Calendar the answer date before you start drafting, and do not let the motion’s briefing schedule erase the need to know whether the motion tolls the answer under Rule 12(a)(4) (generally 14 days after notice of the court’s action if the motion is denied or postponed).