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28 Cards in this Set
- Front
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Rule 20a(1): Permissive joinder of parties |
1. plaintiffs may join in one action if: - a - assert jointly/severally/alternative...same transaction, occurrence or series of transactions or occurrences AND - B - any question of law or fact common to all plaintiffs will arise in the action |
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Rule 20 a(2): Permissive joinder of parties |
Defendants may be joined if: - A - right of relief. same transaction, occurrence, or series of ...(same) - B - any question of law or fact common to all defendants |
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18: Joinder of claims |
a. in general: a party asserting a claim, counter/cross/third-party claim MAY join, as independent or alternative claims, as many claims as it has against an opposing party |
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55a: Default; default judgment: Entering a default |
When a party against whom a judgement for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default 1,2: by clerk and court |
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55c: setting aside a default/default judgement |
the court may set aside an entry of default for good cause, and it may set aside a final default judgment under full 600b |
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13a+B: counterclaim ad cross claim |
in general: a pleading must state as a counterclaim any claim that - at the time of service - the pleader has against an opposing party if the claim: a. arises out of the transaction or occurrence that is subject matter of the opposing party's claim; and B. does not require adding another party over whom the court cannot acquire jurisdiction |
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12a: defenses and objections: time to serve a responsive pleading |
a. time to serve a responsive pleading. 1: in General: unless another time is specified by this rule the time serving a responsive pleading is as follows: - A - A defendant must serve an answer: - - i - - within 21 days being served with summons and complaint OR - - ii - - if it has timely waived service under rule 4d, within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States |
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**12b: How to present defenses |
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: 1. lack of subject-matter jurisdiction 2. lack of personal jurisdiction; 3. improper venue 4. insufficient process; 5 insufficient service of process; 6.failure to state a claim upon which relief can be granted; AND 7. failure to join a party under rule 19. (2-5=h) (must be made before pleading if responsive pleading allowed. No responsive pleading? assert at trial any defense to that claim. No defense/objection is waived by joining it with one or more other Defenses or objection in a responsive pleading in a motion |
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12c: Motion for judgment on the pleadings |
after the pleadings are closed -- but early enough not to delay trial - - a party may move for judgment on the pleadings (motion after answer) |
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12f: Motion to strike |
the court may strike from a pleading an insufficient defense or redundant, immaterial, impertinent, or scandalous matter. The court may act: 1. on its own 2. on motion made by a partier either before responding to pleading or if a response is not allowed, within 21 days after being served with the pleading |
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12g: Joining motions (motion - motion) |
1. right to join. A motion under this rule may be joined with any other motion allowed by this rule 2. limitation on further motions: except as provided in rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion |
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**12h: waiving and preserving certain defenses |
1. when some are waived: a party waves any defense listed in rule 12(B)(2)-(5) by: A. omitting it from a motion in the circumstances described in rule 12(g)(2); or b. failing to either: - i - make it by motion under this rule; or (answer - motion) - ii - include it in a responsive pleading or in an amendment allowed by rule 15(a)(1) as a matter of course (answer - motion |
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12(2): When to raise others |
failure to state a claim upon which relief can be granted, to join a person required by rule 19(b), or to state a legal defense to a claim may be raised: a. in any pleading allowed or ordered under rule 7a b. by a motion under rule 12(C); or C. at trial |
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11: singing pleadings, representations to the court |
b. This part of the rule talks about filing to the court must be proper, not frivolous and be factual. c: sanctions: talks about 11(b) being violated and a sanction can be imposed. d: sanction can be made as a motion separation from other motions under rule 5. |
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41a: voluntary dismissal |
41(a)(1): by plaintiff may dismiss action without a court order by filing - i- a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; oR - ii - a stipulation of dismissal signed by all parties who have appeared B. dismissal is without prejudice unless otherwise said.but if plaintiff previously dismissed any federal or state court action based on or including the same claim, notice of dismissal operates as an adjudication on the merits |
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41(b) Involuntary Dismissal |
if plaintiff fails to prosecute or to comply with these rules or a court order, defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this sub (b) and any dismissal not under this rule (except one of lack of jurisdiction, improper venue, or failure to join under rule 19) operates as an adjudication on the merits |
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9b,c, g: pleading special matters: |
b: fraud or mistake; conditions of mind: must state circumstances alleging this. Malice, intent, knowledge and other conditions of the mind may be alleged generally. c: conditions precedent: suffices to allege that all conditions precedent have occurred or been performed. If denying...must do so with particularity g: special damages: if claimed, must be specifically stated |
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1367: supplemental jurisdiction |
A: except for what is in B and C; district courts that have original jurisdiction have supplemental over all other claims that are so related to claims in the action that they form part of the SAME CASE OR COTROVERSY under article III B: no supplemental under1332 only (diversity of citizenship) no supplemental. |
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1441c: joinder of federal law claims and state law claims |
(c)(1) if a civil action includes (A) a claim arising under const, laws, or treating of US and (B)claim within original/supplemental jurisdiction of district court, or a claim that has been made nonrenewable , entire action may be removed if the action would be removable without the inclusion of the claim described |
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**1331: federal question |
the district courts shall have original jurisdiction of all civil actions arising under the the const, laws, or treaties of united States |
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**1332: diversity of citizenship |
(a) the district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the smartest or value of $75,000 and is between: - 1- citizens of difference states - 2- citizens of a state and citizens or subjects of a foreign state (except ones who are lawfully admitted for permanent residence in uS and are domiciled in same state) - 3 - citizens of different states and in which citizens or subjects of a foreign state are additional parties; and - 4 - a foreign state (defined in1603) as plaintiff and citizens of a state or of difference states |
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**1332c: diversity of citizenship: corporation |
(c) this section and 1441 - 1 - corporation citizens every state and foreign state by which it has been incorporated, principal place of business except: in any direct action against insure of a policy/contract of liability insurance, incorporated or not, to which action the insured is not joined as a party-defendant such insurer shall be deemed a citizen of: - a - every state/foreign state insured is a citizen - b - ...by which insured and has been incorporated and - c - ...where the insurer has its principal place of business and 2: legal rep of estate of a decedent shall be deemed to be a citizen only of the same state as the decedent (same for infant/incompetent) |
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4: summons: waiving |
subject under e,f,h avoid unnecessary expenses. notify defendant action has been commenced and request defendant waive service of a summons a: be in writing and addressed: - i - to individual defendant OR -ii - officer, managing or general agent or other agent authorized to receive service of process |
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**4e: serving an individual within a judicial district of US |
individual may be sermved 1: state law for serving summons OR 2(a): delivering personally 2(b:) leaving copy of each at the indivudla's dwelling or usual place of abode with someone suitable age and discretion who resides there 2(c): delivering to an agent |
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4f: serving in a foreign country |
intentionally agreed or reasonble: by foreign country's law of service, as directed by foreign authority or unless prohibited by delivering personally, or using any form of mail that the clerk address and sends requiring signed receipt OR other means not prohibited |
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15a: amended and supplemental pleadings |
1a: may amend within 21 days after serving it, or 1b: (complaint) if responsive pleading required, 21 days after service or 21 days after service of a motion under rule 12(b),(e) or (F) whichever is earlier |
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15b: amendments during and after trial |
(1) based on objection at trial: party objects that evidence is not within the issues raised, court may permit amendment. Ma also grant continuance to enable objecting party to meet evidence (2): issues tried by consent: issue tried by express/implied consent be treated as if raised in the pleadings. Party may move (any time) to amend pleadings to conform them to evidence |
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60:b relief from a judgement or order |
b: grounds for relief from a final judgment, order or proceeding - mistake newly discovered evidence that could not have been discovered in time for a new trial - fraud - void judgment -judgment satisfied |
