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61 Cards in this Set
- Front
- Back
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RULE 1 What is the scope and purpose of the FRCP? |
The FRCP governs all civil actions in federal district court to secure speedy, just, and inexpensive determination of every action. |
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RULE 3 How is a case initiated? |
By a complaint. |
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RULE 7 What is a pleading? |
Complaints, answers, and any replies ordered by the court. |
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RULE 8 A pleading that states a claim for relief MUST contain: |
1) a short & plain statement of jurisdiction; 2) a short & plain statement showing the pleader is entitled to relief; AND 3) a demand for the relief sought. |
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RULE 8 What is "a short & plain statement showing the pleader is entitled to relief"? |
A short & plain statement sets out facts, not conclusions, that are plausible, not just possible, to be entitled for relief. The judge uses her own experience and judgment to decide plausibility, considering any obvious alternative explanations. |
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RULE 8 Denials |
Denials must fairly respond to the substance of the allegation. The denials may be general or specific. A party may deny part of an allegation by admitting what part is true and denying the rest. If a party doesn't have the knowledge to deny or admit, they must say so and the answer will be treated as a denial. Failure to admit or deny an allegation will result in the allegation being treated as admitted. |
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RULE 8 In responding to a pleading, a party must: |
1) state in short and plain terms its defenses to each claim asserted against it; AND 2) admit or deny the allegations asserted against it. |
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RULE 8 A responsive pleading MUST contain any: |
Affirmative defenses (ex. SoL, duress, etc.) |
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RULE 8 How must the pleadings be construed? |
So as to do justice. |
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RULE 8 If a party mistakenly mixes up a defense with a counterclaim, what must the court do? |
The court must treat the pleading as if it were correctly designated. |
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RULE 11 What must every pleading, motion, or other document for the court contain? |
It must contain an attorney of record's signature and contact information. |
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RULE 11 What must the court do if a document is not signed? |
The court must strike it unless the omission is promptly corrected after being brought to the attorney's attention. |
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RULE 11 What does a signature on a motion, pleading, etc. certify? |
It certifies that to the best of their knowledge, information, and belief, after reasonably inquiry the document is not frivolous. |
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RULE 11 Under this rule, when is a document considered frivolous? |
1) it is presented for improper purpose- bad faith; 2) it contains claims that are not warranted by law or are not arguments for modifying current law or making a new law; 3) it contains factual contentions that are not supported by evidence or will likely not be supported by evidence after investigation & discovery; and 4) it contains denials of legal contentions that are not based on reasonable belief or lack of information. |
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RULE 11 Who can bring sanctions for Rule 11 violations? |
The court may order an attorney to show cause why conduct specifically describe does not violate Rule 11. A party may serve a motion for sanctions on a violating party and if the violating document is not corrected or withdrawn within 21 days they may file the motion with the court.
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RULE 11 What is the nature of sanctions? What kind of sanctions are there? |
Sanctions are imposed to deter repetitive conduct. A court may impose non monetary directives, order to pay penalties to the court, or order to pay fees to movant, including attorney fees. |
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RULE 11 What are the limitations of sanctions? |
A court may not impose monetary sanctions upon a represented party that presented a pleading not warranted by law OR sanctions brought on by the court unless the show-cause was ordered before voluntary dismissal or settlement of the case. |
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RULE 12 When must you serve a responsive pleading? |
A defendant must serve an answer within 21 days of receiving a summons and complaint, counterclaim, cross claim, or order to reply to an answer. |
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RULE 12 If you respond to a complaint, counterclaim, or cross claim by motion and that motion is denied, when must you serve an answer? |
14 days the court denies the motion |
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RULE 12 If the court grants a motion for more definitive statement, when must you serve an answer? |
14 days after receiving the more definitive statement |
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RULE 12(b)(6) |
Motion to dismiss for failure to state a claim upon which relief can be granted. |
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RULE 12 When can you raise a 12(b)(6) defense? |
Pre-answer motion, answer and before or during trial. |
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RULE 12 When you can you raise a 12(b)(7) defense? |
Pre-answer motion, answer and before or during trial. |
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RULE 12 What does it mean to "fail to state a claim upon which relief can be granted"? |
Assuming all the facts in the complaint are true, the plaintiff did not set out all the elements of his case, did not raise a legal claim of action, or revealed an absolute defense. |
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RULE 12 Motion for Judgment on the Pleadings When? What's the legal standard? |
After the answer. There is no genuine issue of material fact after the complaint and answer have been filed. |
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RULE 12 Motion for More Definitive Statement When? Why? |
Before the answer. The pleading is so vague or ambiguous that the defendant cannot reasonably respond. |
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RULE 12 When must a party respond after an order for more definitive statement? |
14 days after receiving the more definitive statement. |
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RULE 12 Motion to Strike When? Why? Who? |
Before the answer. The complaint is immaterial, impertinent, or scandalous. The court may strike the pleading on its own or by a party's motion 21 days after being served with the scandalous pleading. |
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RULE 55 What happens when you do not respond to a complaint by motion or answer. |
Default. Moving party shows failure to respond and default is entered by clerk or by the court. |
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RULE 15 When can a pleading be amended before trial? |
A pleading may be amended once, as a matter of course, within 21 days after serving it or within 21 days after being served a responsive pleading to the pleading you want to amend. |
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RULE 15 When can a pleading be amended if it's not as a matter of course before trial? |
A pleading can be amended with permission of the court or the opposing party's consent. The court should freely grant as so justice requires. |
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RULE 15 When can a pleading be amended in trial? |
A pleading can be amended based on an objection at trial. If there is an issue that was not raised in the pleadings, by express or implied consent of the parties, it is treated as if though it was raised in the pleadings. |
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RULE 15 When can supplemental pleadings be permitted? |
Upon motion and reasonable notice, the court may permit a party to serve supplemental pleadings setting out any T/O that happened after the date of the pleading to be supplemented. |
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RULE 15 An amendment relates back to the date of the original pleading when: |
1) the law has an applicable statute that allows relation back; 2) the amendment asserts a claim that arose out of the same T/O in the original pleading; or 3) the amendment changes the party name of the defendant if the the new defendant received notice if the action and knew or should have known the claim would have been brought against it but for a mistaken identity. |
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RULE 18 In general, how many claims, counterclaims, crossclaims, or 3rd party claims can a party assert against an opposing party? |
As many as it has against an opposing party. |
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RULE 18 Contingent Claims |
Multiple claims can be joined even if they are contingent upon each other.
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RULE 19 What makes an absentee a "required party, if feasible"? |
1) Without the absentee, the court cannot accord complete relief; 2) Without the absentee, the absentee's interests will be harmed; or 3) Without the absentee, the existing parties are exposed to a substantial risk of incurring multiple or inconsistent obligations.
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RULE 19 What happens if a party is considered indispensable? |
The court must decide if the action can proceed without the indispensable party or dismiss the action. |
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RULE 19 What factors do the courts consider to decide whether or not they should proceed with the action without the indispensable party? |
1) the extent that the judgment with prejudice the existing parties; 2) the extent the prejudice can be lessened or avoided by protective provisions, shaping the relief, or other measures; 3) adequacy of the judgment; and 4) alternative remedies for the plaintiff. |
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RULE 19 Pleading the Reasons for Non-Joinder |
A party must state the name, if known, of the person who is required to join if feasible but is not joined and the reasons for not joining that person. |
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RULE 13 What is a counterclaim? |
A claim against an opposing party. |
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RULE 13 What is a compulsory counterclaim? |
A claim that arises out of the same T/O as the plaintiff's claim. |
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RULE 13 When do you assert a compulsory counterclaim? |
MUST be asserted in answer or you lose the right to assert it. |
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RULE 13 What is a permissive counterclaim? |
Does not have to arise from the same T/O |
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RULE 13 Does a permissive counterclaim have to be asserted? |
A counterclaim MAY be asserted. |
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RULE 13 What is a cross-claim? |
A claim against a co-party that may be asserted so long as it arises out of the same T/O as the original claim. There is no such thing as a compulsory cross claim. |
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RULE 13 What is a T/O? |
-Largely the same law, facts, issues, and evidence -Logical relationship between the claim and cross claim or counterclaim -Res judicata doesn't bar suit on defendant's claim |
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RULE 14 When can a party bring in a 3rd party? |
A 3rd party defendant can be brought in if they may be liable to the 3rd party plaintiff for part or all of the claim against it. The 3rd party plaintiff must receive leave from the court if it is more than 14 days after serving the original answer. |
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RULE 14 What must the 3rd party defendant do once served? |
They must assert all claims, defenses, and counterclaims against the 3rd party plaintiff. They must assert any cross claims against other 3rd party defendants.
They may assert any defenses or claims arising out of the same T/O against the plaintiff. |
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RULE 14 Can a plaintiff assert claims against a 3rd party defendant? |
Yes; as long as it arises out of the same T/O as the claim against the 3rd party plaintiff. |
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RULE 24 Intervention of Right |
The court MUST allow an absentee to intervene if they have an interest in the case and that interest can be impaired or impeding by not intervening. |
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RULE 24 Permissive Intervention |
The court MAY allow an absentee to intervene if they have a claim or defense that shares a common question of law or fact with the main action. |
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RULE 24 What must the court consider when exercising judgment regarding permissive intervention? |
They must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights. |
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RULE 24 How do you intervene? |
A motion must be served to the parties stating the grounds for intervention and the claim or defense for which intervention is sought. |
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RULE 23 Class Action Prerequisites |
1. Numerosity 2. Commonality 3. Typicality 4. Adequate representation |
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RULE 23 Class Actions Types |
1. Inconsistent Adjudications 2. Injunctive Relief 3. Damages |
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RULE 23 Damage Class Action qualifications |
The question of law or fact common to the class members predominates over individual questions and class action is the superior method to fairly and efficiently adjudicate. |
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RULE 23 Certification Order- Class Action |
The order that certifies must define the class claims, issues, and defenses and must appoint class counsel. |
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RULE 23 Notice- Class Action |
The court must direct the best notice to all class members that are reasonably identifiable. The representative pays for the notice. The notice must be clear, concise, and use understandable language. The notice must identify the nature of action, the class, the claims, and must tell the member that they can be excluded from the suit. |
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RULE 23 Judgment- Class Action |
All class members will be held to the judgment if they have received notice and did not opt out. |
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RULE 23 Class Counsel- Class Action |
The court must appoint class counsel. In appointing class counsel they must consider the attorneys experience, knowledge, and resources of the the applicable law. They must also consider the counsel's ability to adequately represent the class. |
