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154 Cards in this Set

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1
States that the FRCP governs the procedure in the US dsitrict courts in civil suits.
Scope and Purpose of Rules
2
All actions should be known as "civil actions"
One form of action
3
A civil action is commenced by filing a complaint with the court
Commencement of action
4
How summons should look and when to summon
Summons
4f
Service may be attained by an internationally agreed means (Hague Convention), through an official channel in that country or to the person himself so long as it does not violate an international agreement.
Service upon individuals in a foreign country
4k
Territorial limits of effective service
4k1a
Federal District Court has personal jurisdiction if the state court where the DC is located has PJ
4k1b
Fedearl service for personal jurisdiction is satisfied for a federal court if the party joined under rule 14 or 19 is served within a judicial district and within 100 miles of the summoning district.
4k1c
(not tested) One who is subject to a federal interpleader.
4k1d
Federal Personal jurisdiction may be allowed when authorized by Statute.
4m
Service must be made within 120 days after the filing of the complaint unless the plaintiff shows good cause for the failure.
Time limit for service
4.1
How processes other than a summons should be served (there are only a few of these.)
Service of other process
5
How and when to serve pleadings
Serving and Filing pleadings & other papers
6
Time
6a
The date of the act is not included; the last day is included in the computation
Time: Computation
When the total time is less than 11 days, Sat, Sun & holidays (Rule 77c) shall be included
7
What pleadings do (complaint & answer), how to motion, what goes in a motion.
Pleadings allowed; forms of motions
7.1
Who files the disclosure (non gov corporate party to ID parent company w/stock) & timing
Disclosure statement
8
Genearl Rules of Pleadings
8a
Pleadings must have a short & plain (S&P) statement of: jurisdiction, claim, relief
Claims for relief
8b
S&P defenses to each claim & admit or deny averments. No knowledge = denial.
Defenses; Form of denal
8c
Affirmative defenses must be named in the original answer or they will be waived under 12(d)
Affirmative Defenses
8d
Averments (answers) are admitted when not denied in the responsive pleading.
Effect of failure to deny
8e
When there are multiple statements and at least one is sufficient, total pleading is not made insufficient.
Pleading to be concise and direct; conssitency
A party may state as many sepearte claims or defenses regardless of consistancy
9
Deals with the need and how to aver special things such as capacity to or to be sued, fraud, etc
Pleading Special Matters
10
What the pleading form should look like (names, captions, paragraphs etc). Look at form 9 for inspiration. Circumvent: due process, rules enalbling act (right to privacy, no modify substnative right), combo deal.
Form of Pleadings
11
Signing of pleadings, motions, and other papers; Representations to court; Sanctions
11a
Every written motion shall be signed, with contact info, by at least 1 attorney or the party. No = stricken
Signature
11b
All representations are in good faith (ie not improper, warranted by law, supported by evidence, etc)
Representations to Court
11c
The court may sanction the attorneys firms or parties for violations 11b .
Sanctions
11c1a
unless the challenged paper is not withdrawn or appropriately corrected within 21 days after service of the motion.
Safe Harbor
11c1b
What kind of sanctions are permissible and how (directives, monetary sanctions, etc)
Nature of Sanction; Limitations
11d
This rule (including sanctions) is not applicable to disclosures and discovery requests.
Inapplicability to Discovery
12
Defenses and Objections -- When and How presented -- By pleading or Motion -- Motion for judgment on the pleadings
12a1
Unless statute state otherwise, D shall serve an answer within 20 days ovf being served. The Waived Summons (4d)'s timing is stated here as well.
When Presented
12a2
A party served with a cross claim shall answer within 20 days after being served.
12a3
Timing for resonse for a US agent is 60 days
12a4
Timing for response of thouse not otherwise mentioned
12b1
Lack of jurisdiction over the subject matter
12b2
Lack of jurisdiction over the person
12b3
Improper venue
12b4
Insufficiency of process
12b5
Insufficiency of service of process
12b6
Failure to state a claim upon which relief can be granted
12b7
Failure to joina party under Rule 18.
12c
A motion for judgement on the pleadings may be made after pleadings are closed, but not as to delay the trial.
Motion for judgment on the pleadings
12d
The 12b's shall be heard before trial on application unless the court orders otherwise.
Preliminary Hearings
12e
For a pleading that is too vague or ambigious. The motion shall point out the defects and desired details. If not obeyed within 10 days, the court may strike the pleadings or make such order as it deems just.
Motion for more definite statement
12f
Within 20 daysafter service, the court may strike any insuffcient defense or redundant, immaterial impertenatn or scandalous matter.
Motion to Strike
12g
A party can join motions but cannot amend an omission of a defense or objection then avaliable.
Consolildation of Defenses in Motion
12h
What you do when you don’t or forget to bring up a defense or objection
Waiver of preservation of certain defenses
13
Counterclaim and Cross-claim
13a
A compulsory counterclaim must be stated at the time of the pleadings and arises out of the same Transaction or Occurance that is the subject matter of the opposing party's claim.
Compulsory Counterclaims
13b
A permissive counterclaim does not arise out of the same transaction or Occurrence that is the subject matter. This can be made at any time.
Permissive Counterclaims
13c
A counterclaim has no affect on the recovery of the opposing party.
Counterclaim exceeding opposing claim
13d
You cant counterclaim against the United States
Counterclaim against the United States
13e
A claim matured or acquired by the pleading may be presented with the court's permission
CounterCaim mateuring or acquired after pleadings
13f
How an omitted counterclaim is amended
Omitted Counterclaim
13g
A cross claim against a co-party must arise out of the same T&O or relate to any property that is the subject matter of the original action.
Cross-Claim against Co-party
13h
Parties aside from thouse in the origional action may be parties in a counterclaim or cross claim in accordance with rules 19 and 20
Joinder of Additional Parties
13i
If the court orders sepearte trials under Rule 42b, the judgments are independant of the original claims
Separate Trials; Separate Judgements
14
Third Party Practice
14a
May implead if: 1)non party. 2)within 10 days of being served, or with leave of court. 3) within the 3 classes of indeminification (Contribution Statute, Insurance-like, Respondiat Superior). 4) the claim is contingent (or special or derivitive) upon the outcome of the suit
When Defendnat may bring in Third Party
14b
Under the same rules that apply to the defendnat.
When Plantiff may bring in Third Party
14c
Just deals with sea stuff
Admiralty and Maritime Claims
15
Amended and Supplemental Pleadings
15a
A pleading may be amended: 1)Freebee--once before response or within 20 days if cannot reply. 2)if Justice so requires. 3)Or by written consent by the averse party. Response to the amendment can be within the time remaining for the response to the origoinal or within 10 days after the amendment's service
Amendments
15b
Successful amendments will be treated as if they ahd been raised in the pleadings
Amendments to Conform to the Evidence
15c
Allowed to related back to the date of the original pleading when 1)relation back is permitted by law. 2)Claim or Defense arose out of the conduct, transaction, or occurrence in the original pleading. 4)Change of party or naming of the party if if same T&O or conduct and new party had notice of complaitn within 120 days of original filing (notice can be inferred through attorney, news etc) and the new party must have known, but for a mistake, that their name would have been on the complaint.
Relation back of amendments
15d
The party must motion and the court permit spplemental pleadings for T&O or events happened since the date of the pleading
Supplemental Pleadings
16
NOTE: No 16d, 16e included in this
Pretrial Conferences; Scheduling; Management
16a
The court may call for conferences between the parties
Pretrial Conferences; Objectives
16b
The judge shall order a scheudling meeting within 90 days after the appearance of a defendnat and 120 days after the complaint has been served on a defendant.
Scheduling and Planning
16c
Subjects for Consideration at Pretrial Conferences
16f
The juge may sanction if a party of attorney fails to obey a scheduling or pretrial order, etc, upon motion or the judge's own initiative
Sanctions
17
Parties Plantiff and Defendant; Capacity
17a
Every action shall be prosecuted in the name of the real party in interest/the one entitled to the right. The action cant be dismissed on these grounds untill a reasoanble time has been allowed to react to this objection. Cause of action
Real Party in Interest
17b
The capacity to be sued are goverened by the laws of individual's domicile/State. Are there any weird entites that can or cant be sued (students of Main's civ pro class). Concerned with the entity.
Capacity to Sue or be Sued
17c
Another can act for an infant or incompentant person.
Infants or Incompentent Persons
18
Joinder of Claims and Remedies
18a
You can join as many claims as you want.
Joinder of Claims
18b
If a claim is cognizable only after another claim has been prosecuted, the two may be joined.
Joinder of Remedies; Fraudulent Conveyances
19
Parties that need to be joined in order to adjudicate shall be joined.
Joinder of Persons Need for Just Adjudication
20
Permissive Joinder of Parties
20a
Persons and parties may be joined if action/claim for relief arises out of the same T or O and Law or Fact.
Permissive Joinder
20b
May separate to prevent a party from being embarased, delayed, put to expense, or to prevent delay or prejudice
Separate Trials
21
Misjoinder is not a grounds for dismissal. Any claim may be severed and proceeded on seperately.
Misjoinder
22
Claims against P may be jionded as D when claims subject P to multiple liability--Not Tested
Interpleader--Not Tested
25
How to replace the the parties in events such as death, incomptency or transfer of interest, etc.
Substitution of Parties
26
General Provisions Governing Discovery; Duty of Disclosure
26a1
Initial Disclosures: 1)Contact Info. 2)Relevant documents. 3)Damage Computations. 4)insurance agreements
Required Disclosures; Methods to discovery additional matter
The disclosures must be made within 14 days of a Rule 26f conference (21 days before 16b (90 days before D appearance or 120 after D was served))
26a2
All experts must be disclsosed 90 days before trial (or 30 days after disclosure for rebuttals only)
Disclosure of Expert Testimony
26a3
Evidence for trial that must be disclosed: name and contact for witnesses and ID of documents
Pretrial Disclosures
26a4
All disclosures must be in writing, signed and served.
Form of Disclosures
26a5
Discovery may be obtained by: depositions (oral & written), written interrogatories, inspections of documents or property, physical and mental examinations and erquests for admission.
Methods to Discover Additional Matter
26b
Discovery Scope and Limits
26c
Upon motion, the court may make orders protecting a party or person from annoyance, embarrassment, oppression, or undue burden or expense such as (and a list is given). This is done if you don’t want to comply.
Protective Orders
26d
A party may not seek discovery from any source before the parties have conferred as required by Rule 26f
Timing and Sequence of Discovery
26e
A party must supplement or amend disclosures or responses if there is a change in some material respect.
Supplementation of Discolsures and Responses
26f
Parties must meet to make arrangements for disclosures or settlements at least 21 days before the 16b scheduling conference. Parties must submit a written report of the meeting within 14 days after the confernce.
Conference of Parties; Planning for Discovery
26g
Must be signed by an attorney or the party.
Signing of disclosures, discovery request,s responses, and objections
Proposed Rule 26 amendment
Amendments dealing with electronic information
30
Depositions Upon Oral Examination
Spontaneous
Advantages
Expensive and don’t know whether to do this earlier or later on/person may forget. Can only depose someone once
Disadvantages
31
Depositions Upon written questions
33
Interrogatories to Parties
Cheap and simple
Advantages
Responses will probally be written by a lawyer. Santized. Not to exceed 25 questions in total.
Disadvantages
34
Production of Documents and Things and entry upon land for inspectiona nd other prposes
They have to give you the smoking gun
Advantages
They can give it to you directly or make it difficult by giving you too much information.
Disadvantages
35
Physical and Mental Examination of Persons
36
We can get admissions or denials on the questions of the case.
Requests for Admission
37
How to compell discovery and/or give sanctions for evasive or incomplete discoosure, answer or response
Failure to make disclsoure or cooperate in discovery; Sanctions
38
Jury Trial of Right
38a
The right is given by a Statute of the United States or the 7th amendment of the constitution.
Right Preserved
38b
Must be served in writing anytime after commencement of the action and no later than 10 days after serving of last pleading directed to such issue. Must comply with rule 5d (rule of how to serve)
Demand
Look to the Terry Test to see if this is applicble (if like the 18th century writs and asks for legal relief)
Note
39
If its not a jury trial, then it’s a court trial.
Trial by Jury or by the Court
41
The parties can dismiss its own actions before an answer (without prejudice) or the court can dismiss actions. Good for avoiding claim preclusion.
Dismissal of Actions
42
Consolidation; Sepearate Trials
42a
A joint hearing or trial may be order for actions involving a common questino of law or fact to avoid unnecessary costs or delay
Consolidation
42b
The court may order separate trials for convenience or to avoid prejudice.
Separate Trials
47
Selection of Jurors
49
The court may give these in forms of writtten questions for jury control to see if the jury understands whats going on.
Special Verdicts and Interrogatories
50
Note: same as Directed Verdict
Judgement as a matter of law in jury trials; alternative motion for new trial; conditional rulings
50a
Done if there is no legally sufficient basis for the jury to find for that party on that issue. Done before submission of case to the jury
Judgement as a matter of law
51
How to give instructions and objections to the jury. Note this for jury controls.
Instructions to Jury: Objection
52
52c: Directed verdicts can also occur for non jury trials.
Findings by the court; judgments on partial findings
54
What a judgement is and how costs are appropriated
Judgments; Costs
55
If there is no reponse from either side, the court may enter a default judgement unless it’s the governemnt or the person is an infant or incompetant.
Default
56
Summary Judgment
56a
party seeking to recover upon a claim may move for summary judgement 20 days after the commencement of the action.
For Claimant
56b
D may move for summary judgement at any time.
For Defending Party
56c
The motion shall be served at least 10 days before the time fixed for the hearing.
Motion and proceedings thereon
56d
For a case with multiple claims, a summary judgement against one does not necessarily kill the entire thing.
Case not fully adjudicated on motion
56e
All affidavits shall be made on persoanl knowledge and be used as evidence to see if there is a genuine issue for trial.
Form of affidavits; Further tesimony; Defense Required
56f
The court may allow more time for discovery
When affidavits are unavaliable
56g
Bad faith affadavits presented under this rule may cause the presnting party to pay for extended attorney fees or be adjuded guilty of contempt.
Affidavits made in bad faith
58
How to enter, and timing for a [final] judgement and
Entry of Judgment
59
how and when new trials may be filed for
New trials; Amendment of judgments
60
Clerical mistakes may be corrected by the court at any time or on the motion of the party. Conditions for relief from judgement are listed here as well (60b:new & previously undiscoverable evidence, fraud, void judgment, etc)
Relief from judgment or order
60a
Clerical mistakes may be corrected by the court at any time or on the motion of the party.
Clerical Mistakes
60b
Conditions for relief from judgement are listed here as well (60b:new & previously undiscoverable evidence, fraud, void judgment, etc)
Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc.
61
The court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Harmless Error
64
Methods for securing satisfaction through seizure of person or property
Seizure of Person or Property
65
Injunctions
65a1
No preliminary injunction shall be issued without notice to the averse party
Preliminary Injunctions
65b
How a temporary restraining order may be made: (only if there is irreparable harm and attorney certifies that notice should not be requuired. It will not exceed 10 days unless the court says otherwise and may be contested by the other party upon its notice.)
Temporary Restraining Order; Notice; Hearing; Duration
70
Says that if the judgment directs a party to do something but the party does not do it. In these cases, the court will attach or sequester the disobediant party's property, give someone else the task and have the disobediant party pay for it. The court may also hold the party in contempt.
Judgment for specific acts; Vesting title
84
The forms contained in the Appendix are sufficient under the rules and indicate the simplicity and brevity necessary.
Forms