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59 Cards in this Set

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  • Back
Rule 8
General Rules of Pleading
Rule 8(a)
Claims for Relief
Rule 8(a)(1)
Short and plain statement of grounds for jurisdiction
Rule 8(a)(2)
Short and Plain statement of claim showing pleader is entitled to relief
Rule 8(a)(3)
demand for judgment
Rule 8(b)
Defenses and denials

Answer must admit, deny, or state they are w/o knowledge for each allegation.
Rule 8(c)
Affirmative defenses.
Rule 8(d)
Effect of failure to deny

When response is required, failure to deny is admittance. Otherwise failure to deny is denial.
Rule 8(e)(1)
All averments shall be simple, concise, and direct.
Rule 8(e)(2)
Pleading in the Alternative

Alternative, inconsistent, and hypothetical claims are allowed.
Rule 9(b)
Fraud or mistake must be pleaded with particularity. Other conditions of the mind may be averred generally.
Rule 9(g)
Items of special damage shall be specifically stated.
Rule 10
Form of Pleadings
Rule 11(a)
Every pleading, motion, or other paper must be signed by an attorney (or the pro se litigant).
Rule 11(b)
Representations made by attorney to court
Rule 11(b)(1)
Signed document is not presented for an improper purpose, such as harassment, delay, or needless increase of cost of litigation
Rule 11(b)(2)
Claims, defenses, and other legal contentions in a signed document are warranted by existing law or nonfrivolous arguments for extension of law
Rule 11(b)(3)
Allegations have evidentiary support or are likely to after discovery
Rule 11(b)(4)
Denials are warranted on evidence or are reasonably based on a lack of information or belief
Rule 13(a)
Compulsory Counterclaims

A counterclaim must be made when it exists at the time of service and arises out of the transaction or occurrence that is the subject of the claim. There are some exceptions.
Rule 13(a)(1)
An otherwise compulsory claim need not be stated if at the time the action was commenced the claim was subject of another pending action
Rule 13(a)(2)
An otherwise compulsory claim need not be stated if suit was brought by attachment or other process by which the court did not acquire jurisdiction to render personal judgment
Rule 13(b)
Permissive counterclaims

A pleading may state as a counterclaim any claim against an opposing party not arising out of the subject matter of the original claim
Rule 30
Oral Depositions
Rule 31
Written Depositions

(worst of all worlds)
Rule 32
Uses of Depositions

Impeachment
Agents of the Party
Unavailability (death, illness, distance, etc)
Rule 33
Interrogatories
Rule 34
Production of Documents
Rule 35
Physical and Mental Exams
Rule 36

36(a)(3) - admitted unless properly denied

36(b) - can withdraw or amend
Requests for Admission
Rule 37
Motions to Compel
Rule 45(c)(2)
Subpoenas word word
Rule 27(a)
Depositions Before Suit to Perpetuate Evidence
Discovery Mechanisms useable on non-parties
Oral Depositions
Written Depositions
Subpoenas D T
Rule 26(a)
Required Disclosures

New Mexico doesn't have disclosures but is considering adding them.
Rule 26(b)
Scope and Limits of Discovery

scope: relevant to claims or defenses

limits: not privileged, not prepared in anticipation of litigation
Criticisms of Modern Discovery
1. fishing expeditions
2. Harassment
3. Revealing trade secrets or personal information
4. Freeloading
5. expense
6. administrative burdens
Rule 12(b)(1)
Lack of Subject Matter Jurisdiction
Rule 12(b)(2)
Lack of Personal Jurisdiction
Rule 12(b)(3)
Improper Venue
Rule 12(b)(4)
Insufficient Process

(how is this different from 12(b)(5)? )
Rule 12(b)(5)
Insufficient SERVICE of Process
Rule 12(b)(6)
Failure to state a claim upon which relief can be granted
Rule 12(b)(7)
Failure to join a party under Rule 19
Rule 12(c)
Motion for Judgment on the Pleadings
Rule 12(e)
Motion for a more definite statement
Rule 12(f)
Motion to Strike
Rule 12(g)
You only get one pre-answer motion. You can put all Rule 12 defenses in it.

Exception: you can make additional motions for defenses that weren't available to you previously
Rule 37(e)
No penalty for failure to provide electronic information if it was lost as a result of a good faith operation of an electronic information system
4 types of experts
1. "chatted up"
2. retained, not testifying
3. retained, testifying
4. experts who are direct witnesses
Rule 26(b)(2)(B)
Party need not produce ESI if it is not reasonably accessible due to undue burden or cost.
Rule 15(a)
Pre-trial Amendments

Before response, 1 allowed as a matter of course. Otherwise, w/ opposing party's consent or leave of the court.
Rule 15(b)
Amendments During and After Trial

Amendments to conform with the evidence should be granted freely
Rule 55(a)
When a party fails to plead or otherwise defend, the clerk must enter the party's default
Rule 54(c)
Relief to be granted

A default judgment may not differ in kind or amount from what is demanded. All other judgments should be for relief to which party is entitled, regardless of what was requested.
Rule 60(b)
Grounds for relief from final judgment

mistake, excusable neglect
new evidence
fraud
Difference between NM Rule 11 and Federal Rule
NM: Empty head and pure heart

Feds: reasonable inquiry
Rule 11(c)(2)
Motion for Sanctions, Safe Harbor

Must be filed separately from any other motion, must not be filed until 21 days after service and only if challenged issue is not corrected
Difference between fed and NM rules 55(c)
todo