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75 Cards in this Set
- Front
- Back
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What are the four elements of claim preclusion?
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1. Valid final judgment
2. Judgment on the merits 3. Precludes all claims arising out of the same litigation unit 4. Between the same parties or privities |
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What constitutes judgment on the merits?
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-Full jury trial
-JMOL -Summary judgment -Dismissal for failure to prosecute -Dismissal after 12(b)(6) motion for failure to state a claim -Dismissal after 12(b)(2) motion |
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When is a person in privity with another?
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When he is is identified in interest with another that he represents the same legal right as the other person
-interests are substantively identical |
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What are the three types of theory splitting?
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1. Contract/quasi-contract
2. Arithmetical splitting 3. Splitting of relief |
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What is the majority rule for when a claim can be precluded?
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Same transaction or occurrence test
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What is the idea from the Restatement 2nd of Judgments in regard to the same transaction or occurrence test?
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P should bring all causes of action against D with respect to transaction or series of transactions out of which the lawsuit arose
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What constitutes a transaction or series?
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Determined pragmatically giving weight to whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.
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What is the same evidence/claim test?
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If the 2nd claim turned on essentially the same evidence as the 1st claim, preclusion was said to apply
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What happens in a Primary Rights Jurisdiction?
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If two different primary rights are invovled, they can be brought in different claims
-they are seen as separate claims despite the fact that they arise from the same transaction or occurrence |
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What is the rule of merger?
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A judgment on the first action is considered a final judgment on all other claims that should have been a part of the litigation unit
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What is the rule of bar?
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When P loses action #1, then all claims that would fall under claim preclusion would be barred
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Are third parties typically bound by preclusion?
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No, unless the third party is in privity with the P in the first action
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What are the five elements of issue preclusion?
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1. Issue of fact and/or law
2. That's actually litigate and determined 3. By a valid final judgment 4. The determination of that issue has to be essential to the judgment 5. Lawsuit has to involve the same parties/privities |
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What two things are required for two issues to be considered the same?
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1. Substantive identity
2. Procedural identity |
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What is involved in substantive identity?
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The same issue of facts
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What is involved in procedural identity?
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The same burdens of proof
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What is the test for determining when an issue is essential to the judgment?
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It it appears that the judgment could not have been reached without determining that issue
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When a judgment rests upon alternate findings, are those findings essential to the judgment?
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No
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In a jurisdiction that requires "mutuality" of parties/privities, what is required?
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That a second action must have the same parties/privities of the first
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What are the two types of issue preclusion?
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1. Mutual issue preclusion
2. Non-mutual issue preclusion |
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What are the two ways an issue can be precluded in a mutuality jurisdiction?
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1. When it is either the same party; or
2. The same parties are in privity with each other |
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What is the rule of asymmetry?
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Issue preclusion can't be used against a party that has not had a previous opportunity to litigate, but a party who has not previously litigated can run issue preclusion against a party in the previous action
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What factors are used to detmerine if something should be precluded under non-mutual issue preclusion?
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1. Easy joinder
2. Incentive to litigate 3. Procedural differences 4. Risk of inconsistent judgment |
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What are the two types of pleadings?
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1. Code Pleading
2. Notice Pleading |
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What facts are used when Pleading Ultimate Facts?
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Thos facts that describe in adequate detail the circumstances that the P believes to entitle him to a remedy
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What rule governs complaints?
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Rule 8(a)
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What needs to be in a complaint?
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1. A short and plain statement of the grounds upon which the court's jurisdiction depends
2. A short and plain statement of claim showing that the pleader is entitled to relief 3. A demand for judgment for the relief the pleader seeks |
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What are the two things a compaint must contain?
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1. Factual allegation
2. Legal theory |
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According to Rule 12(a) when must a complaint be served?
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Within 120 days of filing
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What are the three elements of a factual allegation?
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1. Location
2. Date 3. Parties Involved |
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What is the result if a factual allegation is missing?
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The court usually allows P to amend
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What is the basis of a legal theory?
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A legal remedy available for P
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What are the two ways a complaint can fail based on the legal theory?
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1. (Law) Fails to identify legal theory because the facts don't bring to mind any body of law applicable to those facts that would entitle P to recover
2. (Facts) The complaint does identify P's legal theories, but omits one or more facts necessary to body of law |
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What are the two methods of dimissing prior to responding to the complaint?
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1. Rule 12(b)(6)
2. Demurrer |
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What is the difference between a demurrer and a 12(b)(6) motion?
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Demurrer: state action
12(b)(6): federal action |
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What is the D challenging in a demurrer?
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The sufficieny of the P's complaint
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What is the court's response if the complaint is sufficient?
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Court denies the motion and the case continues
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What is the response of the court if the complaint is not sufficient?
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Court sustains the motion and the case is dismissed
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What are the two ways a court can dismiss a case?
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1. With prejudice
2. Without prejudice, so with leave to amend |
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What are the three ways a D can respond to a complaint?
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1. Pre-answer motion
2. Answer 3. Reply |
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What are the 7 Rule 12(b) motions?
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1. Lack of subject matter jurisdiction
2. Lack of personal jurisdiction 3. Improper venue 4. Insufficiency of process 5. Insufficiency of service of process 6. Failure to state a claim; and 7. Failure to join a party needed for a just adjudication |
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What is a 12(e) motion?
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Motion for a more definite statement
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When is a motion for a more definite statement allowed?
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Only where the complaint is so indefinite that the D cannot ascertain the nature of the claim
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What is a 12(f) motion?
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Motion to strike
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What are the two categories in which a 12(f) motion is appropriate?
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1. A legal basis for striking an allegation
2. The complaint is overly long and detailed or if allegations are unnecessarily derogatory |
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What is a 12(g) motion?
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Consolidation of defenses in motion
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What may a party do when they make a 12(g) motion?
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They may join with it any other motions here in provided for and then available to the party
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What must a party do under a 12(g) motion?
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Group all Rule 12 motions together or waive them
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What is rule 12(h)?
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Waiver or preservation of certain defenses
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What are the three requirements for Rule 7(b)?
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1. A request for order shall be made by motion
2. Must be in writing unless motion is made at a hearing or trial 3. Must state with particularity the grounds for the motion |
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What rule governs Answers?
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Rule 12(a)
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When must an answer be filed?
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Within 20 days of service of process
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If service of process is waived how long does a US citizen have to file an aswer and how long does a non-US citizen have?
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-US citizens: 60 days
-Non-US citizens:90 days |
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What are the two major components of an answer?
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1. D needs to respond to allegations made in the complaint
2. Opportunity for D to include affirmative defenses |
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What is Rule 8(d)?
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If D fails to address an allegatoin in the complaint, it is deemed an admission
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What is the rule for affirmative defense?
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Rule 8(c)
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What is a D saying with an affirmative defense?
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Even if the allegations are true there is no liability
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What is the test to determine whether a defense is affirmative?
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Whether the D intends to rest his defense upon some fact not included in the allegations necessary to support P's case
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If a D does not include an affirmative defense in his answer, will he be able to assert it later?
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Generally no, but it is in the court's discretion
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What is the question the court asks to decide if the D will be allowed to assert a non-included affirmative defense?
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Will the P be unduly prejudiced by the defense?
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What are the three ways a D can respond in an answer?
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1. Admit the allegations
2. Deny the allegations 2. Deny the allegations based on lack of knowledge or information |
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What are the two types of denial?
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1. General denial
2. Specific denial |
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What is a reply?
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P's response to D's counterclaim
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What should be included in a reply?
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1. Responses to the allegations of the counterclaim
2. Affirmative defenses, if any |
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Is the P required to respond to a counterclaim?
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Yes, if P doesn't they risk a default judgment
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What rule governs amendments?
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Rule 15(a)
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What are the two types of amendments?
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1. Amendment as a matter of course
2. Amendment with leave of the court |
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When is an amendment as a matter of course allowed?
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Before a responsive pleading is served
-If the pleadings is one to which no responsive pleadings is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served |
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When will leave to amend be given from the court?
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When justice so requires
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What are the two questions that the court asks?
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1. Is the party seeking the amendment blame worth?
2. Is the opponent to the amendment unduly prejudiced? |
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How long does a party have to respond to an amended pleading?
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Within the time remaining for response to the original pleading, or within 10 days after service of amended pleading, whichever is longer
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When are the two times that the Relation Back Doctrine is looked at?
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1. Additional claims
2. Change in parties based on misidentification or misnomer |
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What is the requirement for additional claims?
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Must arise out of the same conduct, transaction or occurrence as set forth in the original pleading, therefore D is not deprived of fair notice
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What are the four requirements for a change in party?
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1. Same transaction or occurrece
2. The party has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits 3. The party knew or should have knows that, but for a mistake concerning the identity of the proper party, the action would have been brought against the new D 4. D must have been on notice within the time allowed by Rule 4(m) - 120 days |
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What questions should be asked when a party is seeking to add claims or change parties?
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1. Is the party seeking the amendment blame worthy?
2. Is the opponent to the amendment unduly prejudiced? |
