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112 Cards in this Set
- Front
- Back
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Rule 7(a)
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Pleadings allowed:
Complaint, answer, answer to counterclaim, reply, etc. |
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Rule 7(b)
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Requirements for motions:
in writing state grounds with particularity state relief sought |
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Rule 8(a)
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contents of complaint:
basis for subject matter jurisdiction short, plain statement of claim demand for relief |
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Standard for statement of claim
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adequate notice, need not state legal theories, alternative or conflicting grounds ok
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Rule 9(b)
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Elevated pleading standard; circumstances with particularity for fraud, mistake, etc.
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Leatherman
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Can't apply heightened pleading standard to civil rights cases
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Prayer for Relief
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P can request alternate forms of relief; court is not limited to the prayer when it determines the actual relief to which P is entitled
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Rule 12(b)(6)
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failure to state a claim upon which relief can be granted; judge by notice pleading standard - - facts not set out fully enough to give notice, or facts all there, but they don't allow recovery under the law
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Rule 12(b)(7)
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Failure to join a party under Rule 19;
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Rule 12(e)
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Motion for a more definite statement; when party is served with a pleading to which a responsive pleadin gis required, but it is so vague or ambiguous that the party can't reasonably respond
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Rule 8(d)
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Failure to deny an allegation constitutes an admission of the matter in question
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Rule 8(b)
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Lack of knowledge; treated as a denial
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Partial Denial
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Rule 8(b); must specify which part you are denying or denial will be ineffective
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General Denial
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Rarely Used; ex: if complaint correctly states D's adress, he can't use a general denial; it will be ineffective and probably be considered an admission
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Ordinary defenses
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the 12(b) defenses
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Affirmative defenses
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involves introduction of new facts in answer, that, when coupled with facts alleged by P, prevent P from recovering
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Rule 8(c)
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Affirmative defenses, not exhaustive list
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Rule 15(a)
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Party can amend pleading once w/o permission of the court as long as a responsive pleading hasn't yet been served
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Amending Pleadings with Court Permission
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Court will deny only if the other part y can can show they will be prejudiced or the amendment is needed b/c of inexcusable neglect or carelessness
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Rule 15(b)
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Amending pleading during or after trial
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Rule 15(c)
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Relation back, when:
Adding claims: claim or defense arose out of same transaction, conduct or occurrence as that set out in original pleading Changing parties: came from same conduct, transaction or occurrence AND paty added has sufficient notice (that it would have been the one sued if not for mistake) and w/in specified time (usually 120 days after complaint is filed) |
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Rule 15(b)(1)
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If party raises evidence on matters outside the pleadings and other party objects, court should grant leave to amend unless it will prejudice the other party
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Rule 15(b)(2)
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Issues tried by consent; if the party should expect/not be surprised that an issue that wasn't in the pleadings is being raised, it should be taken as implied consent (e.g. rasing child support at custody hearing)
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Rule 15(d)
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Supplemental Pleadings; set forth facts that arise after the original pleading - - always require court permission, but it should be given freely
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Rule 12(c)
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Motion for judgment on the pleadings; when all pleading is complete; court consisders all facts alleged as true; most commonly used when part y has failed to defend
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Rule 11
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Attorney has to sign pleadings and motions
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Rule 26(b)(1)
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general standard to determine if info is discoverable; any non privileged matter which is relevant to any party's claim or defense
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Rule 26(b)(1) - info relevant to subject matter
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info relevant to subject matter of the action, but not a party's claim or defense can be discovered by court order upon a showing of good cause
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Discovery: Need to be admissible?
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No, only reasonable calculated to lead to admissible evidence
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Claiming Privilege
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Party can't withhold info based on claim of privilege unless it makes the claim expressly and provides enough of a description of the info being withheld to allow the requesting party to determine if the privilege applies
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Rule 26(f)
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Discovery conference; come up with discovery plan - - subjects, timing and form - - no discovery until conference has been had
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Rule 26(a)(1)
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Initial Mandatory disclosures; names of people and docs that the party may (plans to) use to support its claim or defense in any way OTHER THAN IMPEACHMENT; computation of damages; liability insurance policy if any
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Rule 26(a)(2) and (a)(3)
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Pretial mandatory disclosures; expert testimony, of expert who WILL testify, report on what he'll say, his credentials, compensation, etc. - - tangible evidence to use at trial
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Who may be deposed?
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parties and non-parties; notice to parties, subpoena to non-parties (or can't sanction if they no-show). Party has to travel, non-[party doesn't have to travel more than 100 miles
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Subpoena duces tecum
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can make nonparty bring docs to depo
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Rule 30(b)(6)
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Deposing corporation; give notice to the corp and they have to designate someone to be deposed on matters either known or readily available to the organization
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Objections at Depo
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Must be made concisely and in non-suggestive manner; objection will be noted on transcript, but deponent will usually have to answer; can refuse to answer on privilege if protective order already issued or attorney plans to move for one
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Rule 30
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Depositions
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Rule 33
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Interrogatories; can only be used against parties; limited to 25 Qs; party has duty to investigate to answer;
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Interrogatories; Produce Docs
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Party served, rather than producing the docs, can tell requesting party where to find the info and make it do the search
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Rule 33(b)(5)
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Party can object to question in interrogatory and refuse to answer, instead, specifying why the Q is objectionable - - requesting party then has to get an order compelling the party to answer if it wants to proceed
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Rule 34
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Inspection of Docs
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Rule 36
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Requests for Admissions; used at the end of discovery to par down case to issues that are actually in dispute; can include anything within the scope of discovery and opinions of fact or the application of law to fact
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Rule 35
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Physical and Mental Exams; need court order; may be ordered for a party or a person under the legal control of a party; the physical or mental condition must be IN CONTROVERSY and there must be GOOD CAUSE to examine
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Physical/mental condition"in controversy"
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Can't put another party's condition into controversy just by alleging in the pleadings; have to offer affirmative evidence or affidavit, showing there is a genuine controversy
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Physical/Mental Exam; request for report
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Examined party can request a copy of the report, but then they must turn over any medical reports they have relating to the condition
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Rule 26(c)
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Protective order; protect from annoyance, embarassment, oppression, undue burden or expense
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Ways to Protect Party
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In camera review, protective order, redaction
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Rule 26(b)(3)
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Work Product; made in anticipation of litigation; want to protect lawyers mental process, legal theory; can only be obtained on a showing of need (witness died, etc.)
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Rule 26(e)
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Requires a party to supplement any earlier disclosures that it learns are incorrect or incomplete in a material way
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Rule 56
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Summary Judgment; full or partial
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Standard for Summary Judgement
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Court shall grant SJ if there is no genuine question of material fact and the movant is entitle to judgment as a matter of law - - court does not weigh evidence, if there is conflicting evidence, motion is denied; court doesn't determine credibility of witnesses; all evidence is viewed in light most favorable to non-moving party; if there are competing inferences, the court should decide for the party without the burden of production, unless it seems like one inference is the only realistic one
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Rule 51
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Objections to jury instructions
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Rule 50
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JMOL; covers DV and JNOV;
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Rule 50(a)
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PArty can move for Dv at "any time" before the case is submitted to the jury, but DV cannot be granted on a particular claim or issue until the opposing party has been fully heard on that issue
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Rule 50(b)
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A party can't seek JNOV unless it first moved for DV at the close of all the evidence - - idea of renewed motion; judge merely held off on ruling on DV motion until jury announced verdict, then movant "renews" it and he finally rules on it - - also allows the movant to join a motion for a new trial in the alternative
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Standard for JMOL
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No rational jury could find for the party opposing the motion; the standard is the same for DV and JNOV
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SJ v. JMOL
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B/c judge has seen and heard live witnesses when considering JMOL, he is given more leeway to weigh the evidence and gauge credibility - - even if there is evidence on both sides, it could be that no reasonable jury could find for one of the parties
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Rule 59
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Motion for new trial; must be filed w/in 10 days after judgment; allows new trial for any reason new trial have been granted heretofore
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Two categories of which new trials are granted
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1. jury clearly reached the wrong conclusion
2. there was a serious procedural error during the trial |
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Standard for new trial to cure erroneous jury verdict
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jury verdict is against great weight of the evidence; this is much easier to satisfy than "no reasonable jury" standard of JMOL
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Rule 50(c)
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When party moves for JNOV and new trial in alternative, judge must rule on both; saves time on appeal; conditional new trial is usually granted;
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Standard for new trial to cure procedural defects
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Party must show that the error prejudiced him; Objection to the error is usually needed, unless the error was "clear error" which is so blatant it usually suggest judge bias
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Evidence Rule 606(b)
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party cannot use juror testimony to impeach verdict except to the extent that testimony deals with extraneous prejudicial info or outside influence
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Iowa Rule
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Juror testimony can be used to prove overt acts but not matters that cannot be percieved through the senses
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Remittitur
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Excessive award. court grants motion for new trial unless P agrees to accept reduced damages
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Additur
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Award too low. New trial unless D agrees to pay more damages. NOT available in fed court
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Modified Verdict in remittitur and additur
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most courts hold that proper award is the highest figure a reasonable jury could have awarded
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Harmless Error...
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is not grounds for reversal
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Standard for New trial
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verdict is against the great weight of the evidence
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Standard for JMOL
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no reasonable jury ...
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Standard for SJ
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No genuine issue of fact and movant is entitled to relief as a matter of law
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To preserve motion for JNOV with motion for DV, movant must move when?
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at the close of all evidence
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Motion for JNOV must be within
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10 days
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Motion for new trial must be made within X of verdict
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10 days
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Can't appeal rulings that aren't final decisions; what are some examples?
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discovery rulings; denial of motion to dismiss or motion for summary judgment; orders granting a new trial
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Standard of review for issues of law
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de novo
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standard of review on issues of fact
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clearly erroneous; should not evaluate credibility, if there is significant evidence on both sides, lower court's ruling cannot be clearly erroneous
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Res judicata
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claim preclusion; prevents parties from raising certain claims that were litigated or should have been litigate din the first action
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Claim preclusion applies to:
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only the same parties, or those who are in privity with those of the first action; P can't use same legal theory to recover against the same party on the same facts
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Collateral estoppel
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issue preclusion; prevents parties from litigating certain issues that were actually litigated in the first action
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Rule 18(a)
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A party asserting a claim for relief as an original claim, counterclaim, cross-claim or third party claim may join as many claims as the party has against an opposing party (applies to any party, not only Ps)
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Rule 18(a) test of applicability
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Does not use same transaction test; may join additional claims eve if they have nothing to do with one another
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Rule 13(b)
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Permissive counter claims; D can bring any counter claim, regardless of whether its related to P's claim
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Rule 13(a)
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Compulsory Counter claim; if D has a claim that arises from the same transaction or occurrence as P's claim, D must raise the claim in his responsive pleadings
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Rule 13(a) Test
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Majority uses "Logical Relationship" Test; must derive from the same set of underlying facts, even if the subset of facts differ from each other
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Exceptions to Rule 13(a)
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D doesn't have to assert counterclaim arising from same transaction if: the claim had not yet arisen when D filed his answer; adjudication requires presence of third parties over whom court cannot get jurisdiction; claim is already being litigated in another court
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Result of Failing to plead compulsory counter claim
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cannot assert the claim in later litigation
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Parties Rule 13(a) applies to
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Ds (mainly), but also Ps and third parties: If D files counterclaim against P and P has a claim against D that arises out of the same T or O, P must file the counter claim or lose it
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Rule 13(g)
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Cross claims; filed by one co-party against another - - sam transaction test: party may file cross claim against a co-party arising from the same T or O as either the original complaint, or a counterclaim, or that relates to property that is the subject matter of the transaction
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Compulsory cross claims?
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No, always permissive, BUT if a cross claim is filed, the parties become opposing parties, and the party served must file any claims against the serving party arising from the same transaction (compulsory under 13(g))
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Rule 20(a)
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Ps may join if they assert any right to relief jointly, severally, or in the alternative, if the claims arise out of the same T or O - - must also share a common question of law or fact
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Test for Same Transaction or Occurrence
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Majority uses "Logical Relationship" Test; must derive from the same set of underlying facts, even if the subset of facts differ from each other
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Rule 13(h)
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Parties can be added to counterclaims or cross claims under rules 19 and 20
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Rule 14
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Impleader; If P does not or cannot sue all the parties responsible for his injury, D has the right to seek contribution or indemnity by bringing the other parties into the suit
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Impeader terminology; party names
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Party joined is called the Third party defendant (3PD), party joining the 3PD is the third party plaintiff (3PP)
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when impleader available
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rule 14 allows a party to implead a 3PD who may be liable to the 3PP for all or part of another party;s existing claim against the 3PP
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Who can use impleader?
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D (99% of the time) but 14(b) allows for P to implead if P has been sued for affirmative relief in a counter claim
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Common situations for Impleader
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Joint and vicarious liability and contractual duty to indemnify (insurance)
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"Him not Me" in Impleader
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Impleader is proper only if the 3PD is liable to the 3PP for all or part of 3PP's liability to P. A D cannot use impleader by arguing that it is not liable to P at all and that P has sued the wrong D
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Plaintiff-3PD claims
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P and 3PD can file claims against each other, so long as the basis is from the same T or O that is the subject of the original claim by P against the original D. These claims are always permissive, but if they are filed, 13(a) compulsory counter claim rules apply
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Rule 19
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Compulsory Joinder of Parties; most commonly used as a defense - - a D will move to dismiss the action b/c of the absence of one or more interested people
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Rule 12(b)(7)
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Failure to join a party under rule 19; D pleads this in his answer, if successful, the court orders P to join the party, often they can't b/c of lack of personal jurisdiction - - the court will then consider whether the party is necessary or indispensable and whether the case should be dismissed
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Rule 19(a)
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Establishes the criteria for determining whether a person should be joined (necessary party part by analogy to common law)
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Rule 19(b)
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If a person should be joined under criteria of 19(a), but can't b/c of personal or subject matter jurisdiction, 19(b) lists factors to determine whether the case should be dismissed
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Situations where person should be joined if feasible (Under Rule 19(a))
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1.) absence precludes complete relief
2.) Absence prejudices missing person 3.) Absence prejudices parties |
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Potential problems with joinder
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joinder of missing person may be impossible b/c court lacks personal jurisdiction over the party. In a fed case based on diversity jurisdiction, addition of the missing person may also serve to destroy diversity jurisdiction
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Consequences of Inability to Join under Rule 19
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If P refuses to join, the court will ordinarily dismiss. If P cannot join, the court will considered 4 factors (19(b)) to determine whether it should dismiss the case
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Factors on determining if a party is indispensable
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1.) extent to which judgment would prejudice the missing person or the parties
2.) whether any prejudice could be reduced by protective provisions in the judgment, the shaping of relief, etc. 3.) whether a judgment in the person's absence will be adequate 4.) whether P will have an adequate remedy if the case is dismissed |
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Rule 42(b)
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Severance; claims severed when case is unmanageable or unduly complex or when presence of one claim prejudices another claim; divides existing case into 2 or more cases, P doesn't need to serve Ds a second time, and original pleadings are used in the new cases
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Rule 42(a)
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Consolidation of Cases; court can consolidate cases if they involve a common question of law or fact, court can do it on its own, but it usually the result of a motion
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Supplemental Jurisdiction
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claim arises out of a common nucleus of operative fact with a claim the court has an independent basis for jurisdiction; permissive counter claims ordinarily do not satisfy it; 1367(b) prevents court from exercising supplemental jurisdiction over certain claims by Ps when jurisdiction over the original claim is based on diversity
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