Civ. Lawsuits: FRCP

Question 1

FRCP 4

Answer 1

P Must Complete Service of Process

Question 2

4(a)(1)

Answer 2

 Identify the name of the court and the parties
 Be directed to the defendant;
 State the name and address of the plaintiff’s attorney or the unrepresented plaintiff;
 State the time within which the defendant must appear and defend itself;
 Notify the defendant that a failure to appear and defend will result in a default judgement against the defendant for the relief demanded in the complaint; and
 Be signed by the court clerk; and
 Bear the court’s official seal.

Question 3

Rule 5

Answer 3

If person is represented; must serve the attorney

Question 4

Rule 5-d

Answer 4

disclosure; depositions, interrogatories, requests for documents, of tangible things, to permit entry onto land and requests for admissions are not filed until you use discovery in motions or other proceedings

Question 5

7-a-3

Answer 5

requires an answer by the plaintiff if the defendant’s answer

Question 6

Rule 8 (a)

Answer 6

claims for relief
 The grounds for the court’s jurisdiction, unless the court already has jurisdiction.
 The claim showing that the pleader is entitled to relief.
 A demand for the relief sought; which might include relief in the alternative or other types of relief.
b) After Twombly, how do you determine if a sufficient plain and short statement has been made under the requirements of 8(a)?
 A complaint must provide factual matter, that if taken as true without consideration of any legal conclusions, reveals evidentiary support that the remaining allegations plausibly state a claim upon which relief can be granted.
 Process to use in applying Twombly:
1. Look at the factual allegations in the complaint.
2. Ignore all legal conclusions and naked assertions.
3. If after ignoring legal conclusions and naked assertions, there is remaining factual matter that plausibly states a claim upon which relief can be granted, the claim is sufficient.

Question 7

8(a)(1)

Answer 7

: Short and Plain statement of the grounds for the

Question 8

8(a)(2)

Answer 8

: Short and Plain statement showing pleader is entitled

Question 9

8(a)(3):

Answer 9

Demand for Judgment for relief sought.
May include relief in the alternative or different types of relief.

Question 10

Rule 8-c-1

Question 11

Rule 8 (d)

Question 12

Rule 9(b)

Answer 12

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

Under Rule 9(b), “a party must state with particularity the circumstances
constituting fraud or mistake”; although “conditions of a person’s mind,” such
as malice, intent, and knowledge may be alleged generally.

Question 13

Rule 9(c)

Answer 13

Conditions Precedent

Question 14

Rule 10

Question 15

FRCP 11:

Answer 15

Every document or oral statement to the court must be supported by:
Good facts
God law
good faith

Does not apply to communication outside the court

(a)
Signature Every pleading, written motion, and other paper must be signed by at least one attorney of record in the
attorney’s name or by a party personally if the party is unrepresented The paper must state the signer’s address, e mail address,
and telephone number Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by
an affidavit The court must strike an unsigned paper unless the omission is promptly corrected after being called to the
attorney’s or party’s attention
(b)
Representations to the Court By presenting to the court a pleading, written motion, or other paper whether by signing,
filing, submitting, or later advocating it an attorney or unrepresented party certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances
(
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

Question 16

Violating FRCP 11:

Answer 16

Sanctions:
1st the opposing or court can give you notice (safe harbor rule) and you have 21 days to fix the document and refile

if document remains allegedly incorrect the opposing can file a motion for sanctions and the judge will render a “punishment”. Most of the time it will be monetary

Attorney can be on the hook for bad facts, law and faith; whereas, the client is on the hook for bad facts and bad faith

Other sanctions: pleadings can be stricken; arguments can be voided; and, suits can be dismissed with prejudice

Question 17

Rule 12 (b) (6):

Answer 17

defenses and objections; motion to dismiss

Question 18

Rule 12 (b) (6):

Answer 18

defenses and objections; motion to dismiss

Question 19

12(b)(1)

Answer 19

lack of subject matter jurisdiction
lack of standing
lack of ripeness of adjudication
mootness

Question 20

12(b)(2)

Answer 20

lack of personal jurisdiction

Question 21

12-b-3

Answer 21

improper venue

Question 22

12-b-3

Answer 22

improper venue

Question 23

12-b-4

Answer 23

insufficient process

Question 24

12-b-5

Answer 24

insufficient service of process

Question 25

12-b-7

Answer 25

failure to join a party

Question 26

rule 12-f

Answer 26

use to strike am affirmative defense that are insufficient

Question 27

Rule 12 (d)

Answer 27

Motion for Summary Judgment

Question 28

Rule 12 (d)

Answer 28

Motion for Summary Judgment

Question 29

Rule 12 (h)

Answer 29

waiving and preserving certain defenses

Question 30

Rule 15 (a):

Answer 30

Amendment before trial

Question 31

Rule 15-a-2

Answer 31

party may amend only with opposing party’s written consent or the court’s leave

The court should freely give leave when justice so requires

Question 32

Rule 15-c

Answer 32

statutes of limitation and relation back of amendments

relation back doctrine

Question 33

Rule 26

Answer 33

It catalogues the types of information subject to discovery and imposes discovery-related requirements on the parties throughout the litigation.

Question 34

26-a-1

Answer 34

Initial disclosures
aside from certain exemptions, parties must disclose certain things without awaiting requests through discovery

Question 35

26-a-3

Answer 35

Pretrial disclosures
These disclosures are in addition to the initial disclosures
must serve and file 30 days before trial
each side will have a chance to file and object
14 days to object and those must be filed with the court

Question 36

26-b-2-b

Answer 36

specific limitations on electronically stored information

Question 37

26-c-1

Answer 37

make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters. . . .

Question 38

Rule 30

Answer 38

Depositions; A lawyer for each party is present, as are the witness and a court reporter or recording device. The lawyer who “noticed” (lawyer-talk for requested) the deposition will ask questions that the witness must answer orally under oath. he witness’s lawyer may object to the content or form of the questions and may ask questions of his own when the other lawyer finishes. The court reporter makes a verbatim transcript of the deposition, and the testimony is often visually recorded as well.

In a deposition, the witness must answer the question (unless the answer would reveal privileged information or information protected by court order).

Question 39

Rule 30-c-2

Answer 39

deposition has to be on the record

Question 40

Rule 32

Answer 40

using court depositions in court proceedings

Question 41

Rule 33

Answer 41

Request for production of documents and interrogatories

Question 42

Rule 34

Answer 42

enables such discovery such as encompassing not only documents but any tangible item, land, or
electronically stored information. An e-mail message stored on a computer’s hard drive, or on a backup tape made for crash-recovery purposes, is discoverable, as is a photograph or videotape or stored voicemail or text message or Instagram post.

Question 43

Rule 35

Answer 43

Physical and mental evaluations
can use only when physical or mental condition of the party is at stake in the case
requires a special application to the court

Schlagenhauf v. Holder, 379 U.S. 104 (1964)

Question 44

Rule 36

Answer 44

Request for Admissions; instructs parties to admit, deny, or explain in detail why they can neither admit nor deny.

Question 45

Rule 37

Answer 45

a court may impose punishments ranging from awards of expenses to dismissals of an entire case or the entry of a default judgment. Some sanctions are available on the occurrence of misbehavior. See Rule 37(d), (f). Other sanctions cannot be sought until after the court has ordered a party to comply, but it has refused. See Rule 37(b). And, as we have
discussed, the failure to preserve electronically stored information has its own rule regarding sanctions. See Rule 37(e).

Question 46

Rule 37-c

Answer 46

Failure to disclose to supplement an earlier response, or to admit

Question 47

Rule 37-f

Answer 47

Failure to participate in framing a discovery plan

Question 48

Rule 41

Answer 48

(b) Involuntary Dismissal (Plaintiff fail to prosecute); “if the plaintiff fails to prosecute” (as well as on other grounds).

Rule 41(a)(1) (A)(i) allows a plaintiff to dismiss any time before the defendant answers, and Rule 41 (a)(1)(A)(ii) permits the plaintiff to dismiss a suit at any time if all the parties agree.

The defendant is unlikely to agree to a dismissal for such purposes. Rule 41(a)(2) authorizes a voluntary
dismissal after defendant answers only by permission of the court.

Question 49

Rule 41(a)

Answer 49

Voluntary dismissal
without prejudice, it can be refiled

Question 50

Rule 43

Answer 50

taking testimony

Question 51

Rule 45

Answer 51

Subpoenas

Question 52

Rule 55

Answer 52

Default; default judgment

Question 53

Rule 56

Answer 53

Motion for Summary Judgment
normally after discovery
only need to show that they have legally admissible evidence upon which a jury could decide factual disputes in their favor

at any time until 30 days after the close of all discovery- 56(b)

Th court need to consider only he materials cited by the parties but it may consider other materials in the record already

a party does not have to depose themselves they can submit an affidavit of their testimony (a written statement)- personal knowledge; competent to testify; no conclusory statements

key terms: material issue of facts; genuine issue of material fact

Question 54

60 (b)

Answer 54

Relief from judgment