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87 Cards in this Set

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Source of rule making power for New Mexico?
NM Supreme Court
Source of rule making power for US?
Legislature

Art. III sec. 1 - Congress has power to create inferior courts, therefore they can create the rules, too.
Facts for State v. Roy?
Murder wants conviction overturned because rules were written by court, not legislature.
Holding in State v. Roy?
NM Supreme Court has the inherent power to make rules.
Act defining federal rules process
Rules Enabling Act of 1934
Holding of Jackson v. Stinnet?
A statute passed after a rule repeals the rule to the extent that there is a conflict.
Holding of McCaughey v. Schuette?
Ultimate, not probative facts necessary in a pleading.

This case is included to show what was bad about Code Pleading.
Holding of Dioguardi v. Durning?
No facts are necessary, only a short and plain statement of claim showing pleader is entitled to relief. Rule 8(a)(2).
Holding in Ciralsky v. CIA?
Unnecessary prolixity in a pleading places an unjustified burden on the court and the responding party.
Rule 8(a)(2) - short and plain.
Rule 8(e)(1) - averments shall be simple, concise, and direct
Holding of McCormick v. Kopmann?
It is no ground for dismissal that allegations in one count contradict those in an alternative count. Rule 8(e)(2).
Holding for Premier Capital Management v. Cohen?
Fraud must include the idenity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which it was communicated.
Holding for Hodgson v. Virginia Baptist Hospital, Inc?
A plaintiff cannot be required to plead additional facts if they have already satisfied rule 8(a)(2).
Holding for National Acceptance Co. v. Bathalter?
Pleading the 5th in an answer is a denial if the possibility of criminal prosecution is more than fanciful.
Facts of Ammerman v. Hubbard Broadcasting?
Media seeks to avoid revealing names of sources because statute says they don't have to.
Holding of Ammerman v. Hubbard?
Power to make rules is exclusively in the judiciary.

This was later scaled back.
Facts of Lovelace v. Mendez?
Courts grant application for appeal 28 days after it was filed. Statute says an application not accepted in 20 days is denied. Rules are silent.
Holding of Lovelace v. Mendez?
Legislature actually can make rules, but where they interfere with key functions of the court they are void.
Facts of Jackson v. Stinnet
Prisoner's appeal in forma pauperis gets complicated when Congress passes PLRA during the suit. PLRA conflicts with federal rules. Which should govern?
Facts of Maples v. State
NM Worker's Comp appeal filed. Court rule and statute conflict on when appeal must be filed. Which governs?
Holding of Maples v. State
Court rules always win. But Montgomery's dissent lays out his reasoning for Lovelace v. Mendez a year later.
Facts of Sibbach v. Wilson
TC orders party to undergo Rule 35 examination, party refuses.
Holding of Sibbach v. Wilson
Federal rules that make it through congressional examination are presumptively valid. Frankfurter dissents, feeling that inaction by congress does not give tacit approval, but it looks like this idea never gains support.
Facts of Dioguardi v. Durning
Dioguardi writes crazy, rambling complaint, has it dismissed (twice) for not stating sufficient facts
Holding of Dioguardi v. Durning
Facts not necessary, rather 8(a)(2) requires a short and plain statement of the claim showing pleader is entitled to relief
Facts of Ciralsky v. CIA
Ciralsky fired from job as CIA lawyer, writes 119 page complaint.
Facts of Bell Atlantic v. Twombly
Twombly writes awesome complaint alleging Bell Atlantic violated Sherman Antitrust Act, TC dismisses under 12(b)(6)
Holding of Bell Atlantic v. Twombly
Hard to say. Narrow reading is that Sherman Act claims have a higher standard under 8(a)(2). Broad reading is that the Dioguardi standard just got raised.
8(a)(2) test according to Bell Atlantic
For section 1 claims, complaint must allege sufficient facts to provide plausible grounds to infer an agreement
Why should Bell Atlantic be read narrowly?
1. language confies the holding to Sherman Act claims.
2. explicit denial that a heightened pleading standard was created
Why should Bell Atlantic be read broadly?
Dicta purports to retire Conley, generically emphasizes plausability
Dissent in Bell Atlantic
Stevens feels complaint clearly alleges a "classic per se violation of the Sherman Act." This should be enough, and is at least as good as Form 9 (an example involving negligence). Enhanced pleading requirements should be in Rule 9 or in statutes, none exist here. Remedy for lack of specificity is 12(e), not 12(b)(6).
Facts from McCormick v. Kopmann
Plaintiff alleges her deceased husband was drunk, or, alternatively, not drunk
Facts from Premier Capital Management v. Cohen
Plaintiffs claim fraud induced them to invest in company
What is supplementary jurisdiction?
Jurisdiction arising not out of subject matter or diversity, but out of a compulsory counterclaim.
Facts of Sweircowicz
SVP plaintiff replaced by inexperienced guy. SVP sues for discrimination under title VII
Holding of Swiercowicz
Unless raised by statute, the pleading standards do not require specific facts be pleaded
Facts of Rivera v. Brazos Lodge
NM case where Plaintiff files action to quiet title base on fraudulent deed.
Holding in Rivera v. Brazos
Rule 11 sanctions not appropriate in NM unless there is bad faith. Sanctions upheld because P and P's attorney had legal and factual knowledge contrary to the allegations.
Facts of Elliot v. Tilton
Defendant withdraws releases after finding out they were forged. Rule 11 sanctions moved for on the basis that defense did not reasonably inquire into validity of releases.
Holding of Elliot v. Tilton
Plaintiffs may not file rule 11 motion until after safe harbor period. A court can impose sanctions under its inherent power only after making a specific finding that the attorney acted in bad faith
Facts of De La Fuente v. DCI Telecom
Plaintiff makes 13 claims, 12 of which were time barred. Eventually Plaintiff moves to dismiss its own remaining claim. Defendant tries to reopen case to get rule 11 sanctions.
Holding of De La Fuente v. DCI Telecom
Claims are not frivolous simply because they were dismissed. There must be no objective chance of success and no reasonable argument to change the law
Attorney's Ethical Duties to the court
An attorney shall not:

1. make a false statement of material fact or law
2. fail to disclose material fact or law
3. offer evidence known to be false
Facts of DeFillippo v. Neil
Defendant files answer 1 day late, gets $900,000 default judgment
Holding of DeFillippo v. Neil
A 55(c) motion to set aside entry of default requires

1. good cause
2. existence of a meritorious defense
3. no reason setting aside would be inequitable to P
Policy behind granting 55(c) motions?
1. should be liberal
2. favor adjudication on the merits, not by default
3. claims for large sums should not be decided by default if it can be reasonably avoided
4. Party seeking default should notify opposing party when possible
What establishes a meritorious defense for a 55(c) motion?
Statement of underlying facts
Facts of Gallegos v. Franklin
$500K default judgment in med mal case
Holding in Gallegos v. Franklin?
For default judgment involving compensatory or punitive damages, a hearing is mandatory.
What does entry of default mean?
Liability is conceded. Defaulting party may still contest damages. D need not contest damages, but P must prove them.
Facts for Hodgson v. Virginia Baptist Hospital
Sec. of Labor refuses to add facts in response to 12(e) motion even though he has the facts
Facts of Natl. Acceptance Co v. Bathalter
Former loan officer made lots of bad loans with kickbacks. Pleads 5th in answer to avoid hurting his separate criminal case
Holding of Gill v. Timm
Since D didn't present evidence of P's failure to mitigate, D can't use 15(b) to add it as an affirmative defense, and D is screwed
Is governmental immunity an affirmative defense?
In Davis v. City of San Antonio, the gov't waived this by not claiming it in the answer. However, in Rutherford v. Portland, the Plaintiff had to prove gov't wasn't immune in his complaint
Facts from Erickson v. Pardus
Prisoner alleges cruel and unusual punishment when prison discontinues his Hep C treatment; case dismissed in TC on 12(b)(6) motion
Holding in Erickson v. Pardus
Bell Atlantic "plausibility" standard not applied to this pro se case, Dioguardi type standard applies instead.
Facts of Iqbal v. Hasty
Muslim pre-trial detainee complains of unconstitutional confinement conditions, 12(b)(6) motion is denied
Holding of Iqbal v. Hasty
Heightened pleading standard is not applied, can only be obtained by changing the rules, not by judicial fiat
Plant v. Blazer Financial Facts
Woman sues under truth-in-lending act, lender makes counterclaim for default on the loan
Holding of Plant v. Blazer Financial
Counterclaims are compulsory if they bear a "logical relation" to the claims.
Policy behind 13(a) compulsory counterclaims
1. prevent multiple suits by consolidating

2. provide complete relief to defendant brought involuntarily into federal court
Facts of The Hartford v. Gibbons & Reed
Complicated insurance complaint made right before statute of limitations, where a compulsory counterclaim had already expired
Holding in The Hartford v. Gibbons & Reed
A time-barred compulsory counterclaim can serve as a set-off in NM
Facts of Williams v. Arcoa Intl.
Plaintiffs hurt when UHaul tires fall off. Defendants argue no personal jurisdiction, and also try to implead Ford.
Holding in Williams v. Arcoa
A third party claim under rule 14 waives the 12(b)(2) defense of personal jurisdiction
Facts in Moffat v. Branch
Plaintiff files a 15(a) amendment after notice that 12(b)(6) would be awarded but before a final action or answer is filed
Holding in Moffat v. Branch
15(a) allows a response as a matter of right before answer is filed or final judgment is entered
Facts of Beeck v. Aquaslide
D doesn't find out until just before trial that he admitted something he should have denied, asks for leave to amend under 15(a)
Holding in Beeck v. Aquaslide
Courts should only refuse requests to amend under 15(a) when there is evidence of bad faith, prejudice, or undue delay
Facts in Camp v. Bernalillo Cy. Medical Center
Judge doesn't recuse himself after defense says they won't call judge's neighbor as witness. Allows P to amend, forcing D to need to call neighbor, then refuses to allow D to call neighbor.
Holding in Camp v. Bernalillo Cy. Medical Center
15(b) amendments should not be allowed when prejudice would result to the opposing party
Facts of Galion v. Conmaco Intl.
Original complaint gets defendant name wrong. P amends complaint to name the correct defendant right before being time barred, but new defendant isn't served until after statute of limitations
Holding of Galion v. Conmaco
NM Rule 15(c) period in which notice must be recieved includes the reasonable time allowed for service of process
Facts of Romero v. Bachicha
NM Rule 15(c) period in which notice must be recieved includes the reasonable time allowed for service of process
Holding in Romero v. Bachicha
1. When P does not serve D before amending complaint, fixing a misnomer invokes 15(c)

2. When 15(c) is involved, parties must use due dilligence to avoid delay
Facts from In re Town of Amenia, N.Y.
Sick, 77yr old has testimony necessary for suit that may not be filed for a long time.
Holding of In re Town of Amenia, N.Y.
Requirements for 27(a):

1. Suit reasonably expected
2. but can't be started now
3. Person is only source of information
4. Person unlikely to be available when suit is started
What is "relevant" in NM?
Relevance is very broadly construed-- basically it is relevant unless it has no possible bearing on the subject matter
NMRE 11-501
Except as provided by the NM Const. or in the rules, no person has a privilege to
1. refuse to be a witness,
2. refuse to disclose any matter
3. refuse to produce any object or writing
4. prevent another from the above
Facts from Pina v. Espinoza
P's car rear ended, sues for PI, resists disclosure of OBGYN records
Holding of Pina v. Espinoza
Not all of records are privileged, P must submit privilege log of resisted communications
Facts of ABQ Rape Crisis Center v. Blackmer
Victim Counselor Confidentiality Act purports to give evidentiary privilege to rape counselors
Holding of ABQ Rape Crisis Center v. Blackmer
Statutory privilege allowed to stand because it is not inconsistent w/ the constitution or the rules
Facts of Knight v. Pres Hosp Ctr
P tries to discover various statements from Pres to support his med mal case
Holding of Knight v. Pres Hosp Ctr
For MPAP, you need to show substantial need and undue hardship; however, spontaneously given statements are not MPAP
Facts of Ager v. Jance C. Stormont Hosp.
Birth complications kill mother, render daughter a quadraplegic. Med mal suit filed, D seeks to discover experts via broad interrogatory.
Holding of Ager v. Jane C. Stormont Hosp.
Rules for discovery of experts

1. chatted up - no discovery
2. retained, not testifying - exceptional circumstances
3. retained, testifying - discoverable
4. direct witnesses who are also experts - normal rules apply