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91 Cards in this Set
- Front
- Back
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What are the purposes of the complaint?
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-Notice to defendant
-Notice to the court -Facilitate decision on the merits |
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What happens if the defendant receives a complaint and they really have no idea what’s going on?
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-FRCP Rule 12(e)
-He can file a motion for a more definite statement |
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Rule 12(e)
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Motion for a more definite statement
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Rule 8(a)(1)
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Pleading for a claim for relief (claim, counterclaim, cross-claim, etc.) shall contain a short statement on grounds for court's jurisdiction and short statement showing pleader is entitled to relief and demand for judgment for the relief the pleader seeks
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Rule 10
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Set up of pleadings
(a) caption - names of parties (b) paragraphs - separate statements |
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Are there any drawbacks to giving too much detail in the complaint?
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-If some your details are wrong or harmful, you might get your case dismissed
-You may give away some of your strategies or weaknesses to your opponent |
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When is it acceptable to put contradictory allegations in a complaint?
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-If the Plaintiff is genuinely unsure of what happened
-It has to be reasonable |
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Rule 11
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-Court may sanction lawyers or parties responsible for violation – 11(c)
-allegations are warranted by existing law or legitimate argument for extension of the law - 11(b)(2) -allegations must have evidentiary support - 11(b)(3) -Court has discretion – it may impose sanctions -Alleged violator has 21 days to withdraw or correct the challenged pleading -Court may impose sanctions on its own initiative with show cause opportunity - 11(c)(1)(b) |
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What happens if alleged violator of Rule 11 withdraws or corrects the challenged pleading?
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The motion goes no where and the court never even sees it
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Rule 11(b)(2)
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· sanctions are not appropriate if party has “a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.”
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Rule 12(b)
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Motion to dismiss
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When must a Rule 12(b)(6) motion be filed?
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Must be filed before the answer
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What must a Rule 12(b)(6) motion state?
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State that complaint fails to allege a claim upon which relief can be granted
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How are facts in complaint dealt with in a 12(b)(6) motion?
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All material facts well pleaded in complaint must be taken as true
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How is a 12(b)(6) case usually dismissed?
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Usually a motion to dismiss is given with prejudice, which means that it’s garbage and you can’t bring it again. Every once in a while a judge will dismiss a case without prejudice, which means you can retool it and bring it again
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When must a 12(b)(6) motion be denied?
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If there is a contested issue of material fact.
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Rule 12(h)(1)
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Provides that lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process will be waived forever if omitted from a pre-answer motion, or if no motion is made, from the answer
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Rule 12(h)(2)
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Provides that failure to state a claim upon which relief can be granted, failure to join an indispensable party, and failure to state a legal defense to a claim can be made in any pleading or by motion for judgment on the pleadings, or at trial on the merits
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Rule 12(h)(3)
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Provides that lack of jurisdiction of the subject matter may be made at any time
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Rule 60(b)
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Relief from judgment or order - mistakes, inadvertence, excusable neglect, newly discovered evidence, fraud
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How long after judgment can Rule 60(b) be used?
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Not more than 1 year
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Which rule deals with answer?
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Rule 8(b)
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What ways may you answer a complaint?
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-Admit allegation
-Deny allegation -Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation (usually deemed a denial) -Can admit part of an allegation and deny another part -General denial of everything (rarely done) |
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When can Rule 11 sanctions apply to an answer?
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If you deny an allegation that you should have admitted - Rule 11(b)(4)
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What rule deals with affirmative defenses?
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Rule 8(c)
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What is a compulsory counterclaim?
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The counterclaim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim
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When must defendant raise counterclaim?
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The defendant must assert the claim in response to the plaintiff’s lawsuit or the claim is waived
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What is a permissive counterclaim?
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-Defendant has permission to assert these in conjunction with the plaintiff’s lawsuit
-Counterclaim does not arise out of the same transaction or occurrence but is between the same parties |
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What rule deals with amendments?
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Rule 15
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When and how many times can a complaint be amended?
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Once before the answer is served
-Otherwise need leave of the court -Leave should be liberally granted |
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When and how many times can an answer be amended?
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Once within 20 days of service
-Otherwise need leave of the court -Leave should be liberally granted |
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When should leave to amend be denied by the court?
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-Amendment will result in undue prejudice to other side
-Amendment unduly delayed |
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Rule 15(c)(3)
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Relation back
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What are the guidelines for relation back?
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-New party must receive notice of the action within 120 days after the suit is filed
-New party will not be prejudiced by the delay in preparing its case -Defendant knew or should have known that but for a mistake, the action would have been brought against it |
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Rule 15(c)(2)
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Adding new claim after statute of limitations expires
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When can you add a claim after the statute of limitations expires?
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The claim arose out of the conduct, transaction, or occurrence set forth in the original complaint
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Rule 15(a)
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Adding a new claim if statute of limitations has not expired
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Rule 18(a)
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-Addresses joinder of CLAIMS
-One party can join in the same lawsuit as many claims as it has against another party even if they are unrelated |
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Rule 20
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Permissive joinder of parties
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Plaintiffs may join together in a lawsuit if:
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-Right to relief arises out of same transactions or occurrences; AND
-There is a question of law or fact common to all plaintiffs |
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Plaintiff may sue multiple defendants if:
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-Claims arise out of same transactions or occurrences; AND
-a question of law or fact common to all defendants will arise in the action -Rule 20(b) – separate trials |
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Rule 19
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Compulsory joinder of parties
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Compulsory joinder
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-Sometimes joinder of parties is necessary if feasible
-At other times joinder is indispensable |
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Why might a party resist joinder?
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-Doesn’t want to share damages with other plaintiffs
-Can’t locate other plaintiffs or defendants easily -Running against statute of limitations |
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Under Rule 19(a), how do you determine who are necessary parties in compulsory joinder?
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-Without joinder, can complete relief be accorded to those already in the lawsuit?
-In the absence of the non-party, will a judgment impair the rights of the non-party? -Will those who are already parties be at risk of incurring inconsistent obligations in separate lawsuits? |
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When might a court be incapable of joining a necessary party?
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-A federal court might lose jurisdiction because joinder will destroy diversity
-If they are necessary, but not indispensable – you leave it alone and don’t join them |
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Under Rule 19(b), how do you determine who are indispensible parties in compulsory joinder?
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-To what extent will a judgment rendered in the absence of a person be prejudicial to the non-party or to others in the case?
-Can the court, by crafting protective provisions in the judgment or shaping the relief in a particular way, diminish or eliminate the prejudice? -Will the judgment rendered in the person’s absence be adequate? -If the court dismisses the action because the necessary party cannot feasibly be joined, will the plaintiff be able to obtain relief subsequently? |
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What rule deals with impleader?
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Rule 14
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Counterclaims
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-Generally asserted by defendants against plaintiffs
-Some are compulsory – same evidence rule -Some are permissive |
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Cross-Claims
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-Asserted by one party against a co-party. Plaintiff against plaintiff or defendant against defendant
-Rule 13(g) – cross-claim must arise out of same transaction or occurrence as original claim or counterclaim or must relate to property at issue in original claim |
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Rule 13(h)
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If a party asserts a counterclaim or cross-claim, it can add parties as long as rules 19 and 20 are not violated
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Rule 24
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Intervention
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Intervention as of right
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-By statutory mandate, e.g. Title VII (civil rights)
-Person claims an interest relating to property or transaction that is the subject of the lawsuit --Disposition in person’s absence will impair her ability to protect the right --Interest is not adequately represented by existing parties -If the court finds that all of these terms are met, they have to let the person intervene |
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Permissive Intervention
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-Some statutes give you permission to intervene if the court says okay
-Person’s claim and main action have a question of law or fact in common --If the claim is going to cause undue delay or prejudice to the parties already involved, the court is not going to allow it |
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Rule 23
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Class actions
-First, all four prerequisites of 23(a) are met -Then, must fulfill one of the requirements of 23(b) |
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4 Prerequisites of class actions
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-Numerosity – enough people that joinder is impractical
-Common question of law or fact -Typicality (P's claims typical of all claims) -Adequate representation |
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Rule 23(e)
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Settlement of class actions
-Court approval required -Notice to all class members required, as directed by the court |
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Rule 26(a)(1)(A-D)
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Initial disclosures and what must be disclosed in them
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Rule 34
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Request for production of documents
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How many interrogatories is each party limited to under the current federal rules?
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25 including subparts
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What is the only discovery tool for which advance court approval is routinely necessary?
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Medical examination
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Pursuant to Rule 35, when is it appropriate to conduct a physical or mental examination of someone?
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-When a person’s mental or physical condition is in controversy
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Which 2 discovery mechanisms can be used to obtain information from a third party not a party to the suit?
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depositions and document requests
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What kind of motion can you file if your opposing party refuses to cooperate in responding to your discovery requests?
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-talk to opposing party and threaten to file a motion to compel
-file motion to compel |
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Do you have to do anything if you obtain additional relevant information after you have responded to a discovery request?
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You have to supplement your disclosures – Rule 26(e)
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Work Product
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Material prepared in anticipation of litigation or for trial by a party or its representatives
-Rule 26(b)(3)) |
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Work product rule rationale:
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-Parties must prepare thoroughly for cases
-Parties should not skew their own notes for fear of disclosure -Opposing party has other means of discovery: depositions, interrogatories, document production |
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Work Product Exception
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Work product is disclosable if:
-Party seeking it has “substantial need” AND -Party seeking it cannot obtain the information by other means without undue hardship -Mental impressions, conclusions, opinions, and legal theories of attorney or party’s representatives are never disclosed |
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Attorney-client privilege is absolute unless:
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-Client waives it
-Statements made in public place where can be overheard -Client puts the communication at issue in case --i.e. attorney malpractice |
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Rule 37
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Discovery sanctions
-Reimburse opponent for expenses relating to failure to cooperate -Court can strike portions of pleadings, exclude evidence, decide issues against disobedient party -Dismiss complaint or declare default judgment |
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Rule 56
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Summary judgment
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Summary judgment granted if:
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-the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits... show that there is no genuine issue as to any material fact...”
-can have a motion for partial summary judgment on just one of the claims |
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Distinction between motion to dismiss and summary judgment
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-Rule 12(b)(6) – look only at pleadings
-Rule 56 – matters outside the pleadings are presented to the court, e.g. affidavits or deposition testimony |
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Rule 56(f)
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Court can order continuance of motion for summary judgment to allow further discovery
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7th Amendment
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Right to trial by jury
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Jury Trial Availability
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-Available only for “legal issues” tried in the courts of common law
-Generally, in cases involving only injunctive relief, a bench trial is conducted by the judge without a jury |
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Potential disadvantages of jury:
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-Delay
-Juror incompetence -Juror prejudice |
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Advantages of juries:
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-Common sense
-Jurors nullify the injustice of the law -Jurors are most often serious and conscientious -Educate general citizenry |
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Judgment as a matter of law
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-used to be called motion for directed verdict
-A party can make this motion after the opposing party has been fully heard on the issue -Make motion before submission of the case to the jury |
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Rule 50(a)
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Judgment as a matter of law
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Standard under Rule 50(a):
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-Judge must find that “there is no legally sufficient evidentiary basis for a reasonable jury to find for the [opposing] party.”
-Evidence too weak to support a rational verdict for opposing party. |
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Rule 50(b)
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Renewing motion for judgment after trial
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Renewing motion for judgment after trial
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-Up to 10 days after the entry of judgment
-Used to be called JNOV – judgment notwithstanding the verdict -Now condensed into judgment as a matter of law -Only if motion made during the trial (have to have made a motion for a judgment as a matter of law) -Same standard as judgment as a matter of law |
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Options for losing party:
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-Motion for judgment as a matter of law (JNOV)
-Appeal -Motion for a new trial |
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Rule 59: New trial appropriate if:
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-Serious error occurred during trial
-Verdict was against the clear weight of the evidence -Motion made no later than 10 days after entry of judgment -Motion made by any party or by the judge sua sponte |
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Rule 50(b)
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Motions for a judgment as a matter of law often filed together with motion for new trial
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Rule 60(b) – relief from judgment
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-Mistake, inadvertence, excusable neglect
-Newly discovered evidence -Fraud -Several other reasons |
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Mechanisms to take case away from the jury:
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-Motion to dismiss
-Summary judgment -Motion for judgment as a matter of law before case goes to jury -Motion for judgment as a matter of law after entry of judgment -Motions for new trial |
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Remittitur
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Judge will grant motion for new trial unless plaintiff accepts specified reduction in verdict
-Judge can’t just cut it down – has to give plaintiff an option -Doctrine based in common law -Judge must find the award is “so excessive and exorbitant as to show passion and prejudice on the part of the jury.” |
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Additur
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Judge will grant new trial unless defendant accepts specified increase in verdict
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Is additur permissible in federal courts?
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According to Supreme Court:
-Additur is not permissible in federal courts -Violates Seventh Amendment -State courts are not bound by the 7th Amendment and use additur -Some federal courts employ additur and have gotten away with it |
