• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/26

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

26 Cards in this Set

  • Front
  • Back
FRCP 7(a)
Pleadings Allowed:

- complaint
- answer to a complaint
- answer to a counterclaim designated as a counterclaim
- answer to a crossclaim
- third-party complaint
- answer to a third-part complaint
- reply to an answer (if the court orders one)
FRCP 8(a)
Claim for Relief -- a pleading that states a claim for relief must contain:
1) short and plain statement of the grounds for court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support

2) short and plain statement of the claim showing that the pleader is entitled to relief; and

3) a demand for the relief sought, which may include relief in the alternative or different types of relief
FRCP 8(b)(1)-(2)
(b) Defenses; Admissions and Denials.
Response to a pleading must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party

Denials--Responding to the Substance. A denial must fairly respond to the substance of the allegation.
FRCP 9(b)
Fraud or Mistake; Conditions of Mind

In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.
FRCP 10
Form of Pleadings
a) Caption; Name of Parties
Caption -- court's name, a title, a file number, and a Rule 7(a) designation.
Title -- name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties.

b) Paragraphs; Separate Statements
State its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence -- and each defense other than a denial -- must be stated in a separate count or defense

c) Adoption by Reference; Exhibits
A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to pleading is a part of the pleading for all purposes.
FRCP 15(a)
(a) Amendments Before Trial.
   (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course:
      (A) 21 days after serving it, or
      (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
   (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
   (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.
FRCP 15(b)
(b) Amendments During and After Trial.
   (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.
   (2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties' express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move--at any time, even after judgment--to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.
FRCP 15(c)
(c) Relation Back of Amendments.

   (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

      (A) the law that provides the applicable statute of limitations allows relation back;

      (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading
FRCP 11(a)
Any document (pleadings, motions, or other papers) must be signed by an attorney or the party (if there's no attorney)

Duty of candor -- signature certifies that the party is not advocating a non-tenable position
FRCP 11(b)
Submitting a pleading certifies that:

   (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
   (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
   (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
   (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
FRCP 11(c)
Sanctions
Grounds for Sanction
1) when a party files a pleading that has no reasonable factual basis
2) when a party files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law
3) when a party files a pleading in bad faith for an improper purpose

Sanction should be no more severe than reasonably necessary to deter such conduct

Monetary sanctions are normally paid to the court but can be made to other parties

Before sanctions, parties must receive notice of an alleged violation and have a chance to respond

No sanctions against a represented party for violating FRCP 11(b)(2)
FRCP 11(d)
(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.
FRCP 12(a)
(a) Time to Serve a Responsive Pleading.
-- within 21 days after being served with the summons and complaint;
-- if it has timely waived service under Rule 4(d), 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.
     
Answer to a counterclaim or crossclaim -- within 21 days after being served with the pleading that states the counterclaim or crossclaim.

Reply to an answer -- within 21 days after being served with an order to reply, unless the order specifies a different time.

(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.
FRCP 12(b)
(b) 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.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.
FRCP 12(h)
(h) Waiving and Preserving Certain Defenses.

(1) FRCP 12(b)(2)-(5) are waived 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
         (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

(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 7(a);
      (B) by a motion under Rule 12(c); or
      (C) at trial.

(3) Lack of SMJ -- If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.
FRCP 13(a)
(a) Compulsory Counterclaims
(1) In General. A pleading must state as a counterclaim any claim that--at the time of its service--the pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.
(2) Exceptions. The pleader need not state the claim if:
(A) when the action was commenced, the claim was the subject of another pending action; or
(B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule.
FRCP 13(b)
(b) Permissive Counterclaim
A pleading may state as a counterclaim against an opposing party any claim that is not compulsory
FRCP 13(g)
(g) Crossclaim Against a Co-Party
· A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.
FRCP 14
Impleader
(a) When a Defending Party May Bring in a Third Party
(1) Timing of the Summons and Complaint: A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.
(2) Third-Party Defendant's Claims and Defenses: The person served with the summons and third-party complaint -- the "third-party defendant:"
(A) must assert any defense against the third-party plaintiff's claim under Rule 12;
(B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);
(C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and
(D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff.
(3) Plaintiff's Claims Against a Third-Party Defendant: The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).
(5) Third-party Defendant's Claim Against a Nonparty: A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.

(b) When a plaintiff may bring in a third party: When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so.
FRCP 8(b)(3)
 (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading--including the jurisdictional grounds--may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.
FRCP 8(b)(4)-(6)
(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.    

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.
  
(6) Effect of Failing to Deny. An allegation--other than one relating to the amount of damages--is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.
FRCP 12(b)(6)
Failure to state a claim upon which relief can be granted
-Challenges merits of the case
-Looks only at face of the complaint
-D will often attach additional facts to support the challenge -- it is then treated as a FRCP 56 motion for Summary Judgment
12(b)(6) -- Factual insufficiency
Law recognizes the claim as a legal claim, but P has not stated all the elements or P's facts do not support the claim
12(b)(6) -- Legal insufficiency
Law does not recognize the claim as a legal claim
FRCP 11 -- Safe harbor provision
motion for sanction cannot be filed until at least 21 days after offending party is notified of alleged violation
FRCP 11 -- Ways to initiate sanction
1) By motion -- send the motion to the accused party, give them 21 days to amend before sending it to the court

2) Sua sponte