Civ Pro Ii

Front 1

FRCP 1

Back 1

FRCP should be construed and administered to secure just, speedy, and inexpensive determination of every action and proceeding

Front 2

FRCP 8(a): Complaint

Back 2

(1) statement of the grounds of SMJ
(2) statement of the claim (claim must be “plausible”)
(3) demand for relief sought (e.g. $ damages, attorney fees, costs, injunctive relief; c.e.g. annoyed at bad puns)

Front 3

FRCP 8(a)(2): Complaint

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a pleading (including a complaint) must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”
Purpose:
(1) Give notice to D
(2) Provide outline for court that will guide development of case (e.g. discovery)
(3) Used to show merits of case to show that P has no right to relief (Iqbal)
- claim requires complaint with enough facts (taken as true) to suggest a valid claim arises (doesn’t require specific facts)

Front 4

Bell Atlantic and Iqbal: “plausibility” standard applies to all cases

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“plausible” between “possible” and “probable”
Principles
- (1) complaint must not contain legal conclusions, but just the facts
- (2) complaint must state a “plausible claim”; “possibility” isn’t enough

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FRCP 8(d): Consistency of Statements

Back 5

claim may have multiple hypo statements regardless of consistency (two drivers in same car)

Front 6

FRCP 9(b): Fraud

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P must state with particularity the circumstances constituting fraud
- reasoning for heightened standard: damage to reputation might scare innocent D to settle

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FRCP 9(g): Special Damages

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if item of special damage is claimed, it must be specifically stated
- e.g.: objective; more easily calculated; medical bills; loss of earnings now and in the future
- general damages: subjective; no specific figure
follow “naturally” & “necessarily” from occurance: physical pain & suffering

Front 8

FRCP 54(c): Default Judgement

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P can’t collect more than what was demanded in complaint
- Judgment in favor of P when D hasn’t responded to summons/failed to appear in court
- purpose: give D notice to decide whether D wants to show up to court (e.g. $20 claim)
- P could get more during trial

Front 9

D’s Response to Complaint

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File 12(b) Motion; and/or File Answer

Front 10

FRCP 12(b): Motions

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(1) lack of SMJ
(2) lack of personal jx*
(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 FRCP 19
* waivable: if you don’t raise motion you lose
- removal from state to fed court doesn’t require a motion
- dismissal w/o prejudice requires a motion

Front 11

FRCP 12(b)(6): Motion to Dismiss

Back 11

- Failure to state a claim
- Usually dismissed with prejudice
- File before end of trial
- Very high hurdle
- Court assumes all facts in complaint are true
- Four Corners Rule: D can’t add in any facts
- If complaint’s allegations are ambiguous & one reading states a possible claim, claim can’t be dismissed. D can only move to order P to allege a more definite claim statement.

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Other FRCP 12 motions

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- FRCP 12(c): Dismiss after considering all pleadings
- FRCP 12(e): Clarify allegations
- FRCP 12(f): Strike embarrassing & irrelevant info

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FRCP 8(b): the Answer

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- Admission: D agrees; sanctions if bad faith
- Denial: D rejects claim/premise
- Lack of knowledge/info: D doesn’t know
- Allegations in complaint that aren’t specifically denied deemed admitted (D can’t deny accident because D already collected from insurance, thus admitting accident) --> parse every paragraph

Front 14

FRCP 8(c): Affirmative Defenses

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- “Yes, but . . . “ defenses
- D asserts new issues/facts
- If not raised in Answer, then waived (policy: give P notice; narrow dispute)
- After pleadings, trial, and judgment, US filed motions claiming that the damages were excessive because they were limited by Act to $500K. Both motions were denied. Had Ps known that the statute applied they would have tried to prove damages that were not subject to the statute.

Front 15

FRCP 7(a): Reply

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- P’s response to Answer
- Usually, courts assume denials

Front 16

Amendment Scenarios

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(1) You messed up (e.g. misspelled party’s name, didn’t explain SMJ, no signature)
Fix it if you forgot something
In response to Motion to Dismiss
(2) You learn new facts (e.g. add more detail)
Often during discovery
To include all allegations and demand full damages
(3) New things happen
ongoing harm by D
includes new related allegations and demand full damages

Front 17

FRCP 15(a): Pre-Trial Amendments

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(1) Amending as a Matter of Course allowed once within:
- (a) 21 days after serving it, or
- (b) 21 days after service of a responsive pleading
(2) Other Amendments
- party may amend its pleading only with the opposing party’s written consent or court’s leave
- court should freely give leave when justice requires and only denied when party opposing amendment can show bad faith, undue delay, or prejudice
- prejudiced to extent that D will prevail at trial and P will not be allowed to proceed against other parties

Front 18

FRCP 15(b): Amendments to Conform

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- “If, at trial, a party objects that evidence is not within the issued raised in the pleadings, the court may permit the pleadings to be amended.”
- “When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings.”

Front 19

FRCP 15(c): Relation Back (at issue when SOL/amendment)

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(A) When applicable law allows it;
(B) When adding related claim against existing party (same trans/occurance)
(C) When: adding party; to existing claim; if new party knew of suit within 120 days of filing; AND but for “mistake,” new party would have been name originally
- policy: encourage party to do homework
- counter-argument for policy: get info during discovery; don’t encourage putting someone else name as a placeholder; leads to baseless suits

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FRCP 15(d): Supplemental Pleadings

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- P obtains new cause of action against D after Complaint filed
- Court can permit P to Amendment Complaint to include new c-a
- Standard: “under such terms as may be just” (nothing re trans/relations back)
- policy: promotes court’s efficiency since parties are already in court

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FRCP 11: Sanctions: Signature certifies “reasonable inquiry” into:

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(1) No improper purpose
(2) Claims warranted by law OR non-frivolous extension (argue policy)
(3) Is/will be evidence for fact (c.e.g. no evidence of secret meeting even though P had hunch)
(4) Is/will be evidence for denials

Front 22

Sanctions

Back 22

- By Whom: party or court (with notice)
- How: safe harbor provision:
- (1) Send motion for sanctions to attorney
- (2) Wait 21 days for attorney to withdraw doc
- (3) File a motion with court
- Against Whom: client, attorney, firm/org
- Types of Sanctions: money to court or other party

Front 23

FRCP 18(a): Joinder of Claims: D & P can both file

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- P can add multiple claims
- BUT must have SMJ over each claim
- No CNOF
- e.g. can combine a loan and a car accident between the same two parties

Front 24

FRCP 13: Counterclaims and Crossclaims

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(a): Compulsory Counterclaims
- (1) CNOF; and
- (2) No unavailable party
- * UNLESS being litigated elsewhere
- Always SMJ through 1367
- Waived if not filed in Answer (at pleading stage)
- used when the second claims has no independent basis for SMJ
(b): Permissive Counterclaim
- Everything else!
- Claim that doesn’t have CNOF with original claim can be filed now or later.
(g): Crossclaims
- Claim against co-party
- CNOF
- * Always SMJ through Supplemental Jx
- permissive and policy reason to expedite resolution of issue with CNOF

Front 25

FRCP 20: Permissive Joinder of Parties

Back 25

- (1) Claims share CNOF; and
- (2) Common question of law or fact
- in practice the two reqs are the same, but address them separately on exam
- * P ading party in Diversity action can’t use 1367 (must find independent basis for SMJ)
- Fed Q: doesn't matter, but can’t be in court if its a purely diversity jx
- Two Ps can be in same suit if they share CNOF
- Complete diversity of all Ps from all Ds

Front 26

FRCP 42: Consolidation and Severance

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a) Consolidation allowed when common question of law or fact pending before same court
b) Separate Trials allowed when necessary to avoid prejudice, or to expedite and economize particular issues or claims

Front 27

USC 28 § 1367

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(a) Grants Supplemental Jx for claims and parties arising out of “same case or controversy”
(b) Limits Supplemental Jx by requiring complete diversity when Ps in pure Diversity cases add parties through FRCP 14, 19, 20, or 24 (memorize)
(c) Lists discretionary factors

Front 28

Necessary/Indispensable parties

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(1) Party “necessary” if no PJ or SMJ problems, and continuing suit without it would:
- deny complete relief to existing parties
- hurt absent party’s future interests (e.g. can’t refile later); OR
- hurt existing party’s future interests (potentially inconsistent results of future suit)
(2) Is it feasible to add absent party?
- Not feasible when diversity is destroyed in pure diversity case (SMJ) or PJ problem
- If feasible then stop analysis
(3) Determine whether party “indispensable” by balancing four factors. Otherwise case continues.
- (i) Extent of prejudice to absent and existing parties
- (ii) Possibility of minimize or prejudice (e.g. judgement not binding on existing parties, damages instead of injunction)
- (iii) Whether judgment rendered in person’s absence can be adequate
- (iv) Whether P has alternate remedy if action dismissed (e.g. file in state court)

* If case dismissed, absent party indispensable!

Front 29

FRCP 14: Impleader (fact pattern: someone else might have done something wrong — mfg of jelly)

Back 29

- D may file against 3PD within 14 days of Answer (otherwise need court permission)
- Discretionary Factors: Impleader allowed based on:
- Is delay intentional/bad faith?
- Will change unduly delay/complicate trial? (parties already deposed and in trial)
- Will there be prejudice to 3PD or P?
- Does claim have merit? (main factor)

Front 30

FRCP 14 & 1367(b)

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- No Supplemental Jx when pure Diversity Ps add parties through FRCP 14, 19, 20, or 24
- D can add 3PD using Supplemental Jx
- BUT when P in pure diversity action adds 3PD as regular D, no Supplemental Jx

Front 31

Comparing Joinder Rules

Back 31

- FRCP 13: Existing parties initiate claim
- FRCP 18: Existing parties add additional claim
- FRCP 14, 19, 20: Existing parties add other parties into one action
- FRCP 22 & Statutory Interpleader: Stakeholder joins all claimants into one action.
- FRCP 24: Absent party wants to join on his own (w/o request or demand from existing parties)

Front 32

FRCP 24(b): Permissive Intervention

Back 32

- Party wanting to intervene files “timely” MTI
- Req: Common question of law or fact
- Court has discretion to grant/deny

Front 33

FRCP 24(a): Intervention as of Right

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On timely motion, the court must permit anyone to intervene who:
- (1) is given an unconditional right to intervene by a fed statute (e.g. fed gov wants to intervene in discrimination action); OR
- (2) If all 4 satisfied, intervention must be granted:
- Application must be timely
- Proposed intervenor must have an interest in the action
- Resolution of current action could impair or impede proposed intervenor's interest; and
- Proposed intervenor's interest must not already b adequately represented by existing parties

Front 34

FRCP 24 & 1367

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- Supplemental Jx shall include claims that involve intervention
- Ps in pure Diversity action may not use Supplemental Jx to add claims to parties joined through FRCP 24 + Party seeking to intervene as P in pure Diversity action can’t do so through Supplemental Jx

Front 35

FRCP 23: To have a viable class action, your suit must:

Back 35

Define the Class (narrow to specific class — assertable class of people?)
- P files Complaint and Motion for Class Certification which define class & specifies:
- (1) Numerosity: class sufficiently numerous?
permissive joinder: impracticability v. class action: procedural inconvenience: 25-39 debatable: (1) geography & (2) size of each claim
- (2) Commonality: common question of law/fact across all members
- (3) Typicality: claims of class rep typical of those in rest of class?
rep have significantly more/less claims/damages? different facts that are invoked?; AND
- (4) Adequacy of Representation: P's claim and class claim is so interrelated the interests of class members will be fairly & adequately protected in their absence
- Fit into at least ONE category from FRCP 23(b)
- (1) Not allowing class action would prejudice P/D
- (2) P class seeks injunctive/declaratory relief
- (3) P seeks damages
- (a) Must ALSO show:
- Common question of law/fact predominate over individual questions; AND
- Class action is superior to individual suits
- (b) Must send notice and opt-out provision to all members
* named P can’t be from same state as D
* can’t add up all claims to meet $75K amount in controversy —> may add parties if at least one party meets amount in controversy

Front 36

Class Action Fairness Act (CAFA)

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- may add up all claims to meet amount amount in controversy if amount equal $5 million
- minimal diversity: at least one D diverse from at least one P

Front 37

FRCP 26(b)(1): Discovery Scope & Limits

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- “any nonprivileged matter that is relevant to any party’s claim or defense.”
- Other for “good cause”
- Must be “reasonably calculated to lead to discovery of admissible evidence”
- Court discretion (e.g. a lot of discretion to craft protection order — e.g. embarrassment)
- Tools (5): Depositions, Interrogatories, Doc Reqs, Physical/Mental Exam, Reqs for Admission

Front 38

FRCP 26(a): Initial Disclosures

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(1) Name and contact info for people that the disclosing party may use to support their claim/defense (i.e. witnesses)
(2) All docs supporting disclosing party’s position
(3) How P computed their damages
(4) Insurance D can use to pay for judgement

Front 39

FRCP 26(f): Discovery Plan: Parties must confer a soon as practicable to:

Back 39

- Discuss case and possibilities for settlement
- Arrange for required disclosures; and
- Develop a discovery plan

Front 40

Depositions: opposing attorney questions witness under oath; court report transcribes

Back 40

Process: serve notice stating time/place AND if non-party issue subpoena (lawyer writes)
Scope: limit of 10, 7 hours each
* Written Depositions: conserve anonymity
* Corps: give corp notice of subject and corp decides who gets deposed
* Even if party’s attorney objects witness has to answer
* most common discovery tool

Front 41

Interrogatories: parties answer questions in writing under oath

Back 41

Process: serve parties questions; response or objections due in 30 days
Scope: default limit of 25 Qs; useful for specific, factual info in other party’s possession
* Hypo: use deposition to follow up on an interrogatory

Front 42

Doc Requests

Back 42

parties must provide access to inspect, copy, test, or sample docs, data, and other tangible things within their control

Front 43

Physical & Mental Exam: forced medial exam of party (P/D)

Back 43

- Process: party must request court order by showing:
- (1) mental/physical condition in controversy; AND (2) “Good cause” for exam (e.g. if there’s already been an exam, request another independent exam)
- Scope: Court order (higher standard than FRCP 26)

Front 44

Request for Admission: one party asks other to admit specific facts; responding party must admit, deny, or state exactly why s/he can’t

Back 44

Process: mail requests; response due in 30 days
Scope: admissible at trial; help narrow issues; failure to respond deemed admissible

Front 45

Supplement

Back 45

required to disclose new info or correct info (if error made previously)

Front 46

Use of Discovery

Back 46

depositions can be used at trial if they comply with FRE and used for purpose of impeachment/unavailable witness

Front 47

FRCP 26(b)(1): Privilege

Back 47

- “Parties may obtain discovery regarding any nonprivileged matters that is relevant to any party’s claim or discovery.”
- Specifically exempts privileged matter from discovery
- e.g. Info about any expert witness testimony must be disclosed

Front 48

Attorney Client Privilege: Definition

Back 48

confidential communications between lawyer and client for purposes of giving or receiving legal advice or service

Front 49

Attorney Client Privilege: Scope & Corps

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- communications, not underlying facts (i.e client need not to say what he told lawyer)
- must be confidential (i.e. third party can’t hear)
- disclosure waives privileges (e.g. lawyer tells a third party what him and client talked about — however, lawyer may vaguely disclose communication)
- e.g. Info prepared/obtained by counsel in preparation for litigation after a claim has arisen is not protected by attorney-client privilege, but by Work Product Doctrine
- Corps: applies when attorney is authorized by management to inquire into the subject and must be seeking info to assist counsel in performing: (a) evaluating whether EE's conduct would bind corp; (b) assessing legal consequences of that conduct; OR (c) formulating appropriate legal responses to actions that may be taken by others with regard to that conduct.
- e.g. EE sexual harrasses someone

Front 50

FRCP 26(b)(3): Work Product

Back 50

“Ordinarily, a party may not discover docs and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.”

Front 51

Work Product Doctrine

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- covers memos, factual findings, legal research, notes from witnesses
- Doc/tangible things — not underlying facts
- Prepared in anticipation of litigation or for trial (c.e.g. regular employment record)
- Done by lawyer and assistants (e.g. paralegals, assistants)
- Absolute protection for lawyer’s mental impressions, conclusions, opinions, and legal theories
- NO absolute protection for everything else (e.g. witness dies)
- Party (1) substantial need of the materials; and (2) unable without undue hardship to obtain the substantial equivalent of the materials by other means
- Doesn’t include info prepared by a party’s expert witness

Front 52

FRCP 56: Summary Judgment (SJ)

Back 52

The court shall grant SJ if the movant shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law
- “Based on the law, there’s no need for trial.”
- No genuine issue of material fact in dispute
- Court can also grant partial SJ
- Court ruling on motion for SJ must apply same standard that will apply at trial, considering what reasonable jury would decide

Front 53

Two-step SJ Process (“Burden of Production”, not “Burden of Persuasion”) for SJ

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(1) Moving part must demonstrate no GIMF
- Moving party does not meet burden —> SJ denied
- Moving party does meet burden —> move on to step two
(2) Nonmoving part must demonstrate there actually is GIMF
- Nonmoving party does not meet burden —> SJ granted
- Nonmoving party does meet burden —> SJ denied
- * If GIMF —> SJ denied
- * Reasonable inferences favor nonmoving party
- * if a reasonable jury could decide either way there’s GIMF

Front 54

FRCP 50(a): Judgment as a Matter of Law (JMOL)/Directed Verdict

Back 54

- Judge (not jury decides the case)
- Same standard as SJ: no GIMF/no reasonable jury could decide otherwise
- Motion must be made after nonmoving party completes testimony, but before case submitted to jury

Front 55

FRCP 50(b): Renewed JMOL (RJMOL)/Judgment Notwithstanding the Verdict (JNOV)

Back 55

- Judge reconsiders earlier JMOL (decides instead of jury)
- Same standard as SJ: no GIMF/no reasonable jury could decide otherwise
- Motion made within 28 days after jury renders verdict
- ONLY available if party moved for JMOL earlier
- e.g. Where a jury’s findings in a civil suit for personal injury is based on a mere possibility, but not the preponderance of the evidence, a RJMOL should be granted.