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Law School - First Semester > Civ. Pro. > Flashcards

Civ. Pro. Flashcards

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1
Q

What does a sufficient claim for relief need?

A

FRCP 8(a) - Jurisdiction, demand for relief
(1) short plain statement of a claim; (2) name, blame, claim; (3) legal sufficiency; (4) factual sufficiency

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2
Q

Legal Sufficiency

A

name ALL elements of the claim within the pleading

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3
Q

Factual Sufficiency

A

(1) ignore unsupported legal conclusions, recitals of cause of action; (2) assume all factual allegations are true; (3) determine if plausible (Twiqbal)

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4
Q

Can a pl. make alternative claims?

A

FRCP 8(d) - yes, but at least one of the claims must be sufficient

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5
Q

Formation guidelines for pleadings

A

FRCP 10

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6
Q

Can def. make alternative defenses?

A

only if the def. is genuinely in doubt about what happened

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7
Q

Can def. challenge the sufficiency of the pl. complaint?

A

Yes, through FRCP 12 motion

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8
Q

What is needed for a pl. to plead fraud or mistake?

A

FRCP 9 - (1) state w/ particularity the circumstances; (2) make general allegation of def. conduct; (3) factual contentions must be able to be proved by future evidence (11(b)(3))

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9
Q

Elements of a Preliminary Injunction

A

(1) establish the likelihood of success on the merits; (2) pl. must prove likely to suffer from irreparable harm in absence of prelim. injunction; (3) the equities balance in the favor of the pl.; (4) prelim. injunction is in the best interest of the public

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10
Q

Voluntary dismissal

A

FRCP 41(a) - (1) filed by the pl.; (2) notice of dismissal prior to def. ans. or MSJ; OR (3) stipulation of dismissal (signed by both parties); OR motion filed with the court requesting court to dismiss the claims

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11
Q

Involuntary Dismissal

A

FRCP 41(b) - (1) filed by the def.; (2) pl. failed to comply with the FRCP

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12
Q

Def. options in responding to a complaint

A

FRCP 8(b) & 12(b) motions - if def. needs additional information outside of the complaint to dispute the claim, do nothing (mo. in the future)

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13
Q

Default

A

when def. does not appear at all for the case

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14
Q

Entry of Default

A

request to the clerk to enter default on the docket for def. failure to show up

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15
Q

Entry of Default Judgment

A

From the clerk 55(b)(1) - (1) relief sum is certain, can be shown with affidavit; (2) def. did not appear EVER
From Judge (all other cases outside of above) 55(b)(2) - (1) apply to the court for default judgment; (2) pl. must send written notice at least 7 days prior to the hearing

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16
Q

Amending Pleadings Before Trial

A

FRCP 15(a)(1) - once as a matter of right; no later than 21 days after serving it; if pleading that req. response (complaint/12(b) mo.) 21 days after service of resp. pleading or motion, whichever is EARLIER
FRCP 15(a)(2) - all other cases: ONLY w/ opposing party consent OR courts leave

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17
Q

Amending Pleadings During & After Trial

A

15(b)(1) during trial - if party obj. evidence is not within issues raised in pleadings, court may grant leave to amend; should freely permit when (1) it will aid in presenting the merits; AND (2) obj. party fails to show the court that amending will prejudice their action/defense on the merits
15(b)(2) after trial - party may move to amend pleadings after trial to conform with evidence

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18
Q

Relation Back of Amendments

A

15(c) - amendment to pleading relates back when (1) law that provides the statute of limitations allows it; (2) amendment asserts claim/defense arising from that set out or attempted to set out in original complaint; (3) change party or name of party (a) received notice of action; and (b) knew or should have known of action

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19
Q

Supplementing Pleadings

A

15(d) - w/ motion AND reasonable notice; transaction or occurrence that happened AFTER the date of the original pleading

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20
Q

What information is needed from an attorney to avoid sanctions?

A

FRCP 11 - name, address, email, phone #

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21
Q

What if an atty does not follow guidelines for pleading requirements?

A

opposing party MUST notify party of issue w/ pleading, give chance for party to fix issue, if not fixed, court is to strike the pleading

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22
Q

What other ways can an atty get sanctioned for?

A

11(b) - (1) paper presented for improper purpose; (2) legal contentions are NOT warranted by existing law; (3) factual contentions DO NOT have evidentiary support; (4) denials of factual contentions are NOT warranted on evidence or based on reasonable belief or lack of info
28 U.S.C. 1927 - atty. multiplied proceedings unreasonably or vexatiously

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23
Q

Can parties filed motions for sanctions?

A

11(c)(2) yes - (1) must be separate motion; (2) specifically describing conduct that violates 11(b); (3) notify the violator wia phone OR email; (4) serve motion on violator and wait 21 days for correction before being filed w/ the court

24
Q

Can the court impose monetary sanctions?

A

11(c)(5) NOT - (1) against a party for violating 11(b)(2); OR (2) on its own UNLESS it issues a show cause order

25
Q

Show Cause Order

A

11(c)(3) - courts order fro atty to show cause why conduct specifically described has not violated 11(b)

26
Q

Requirements for Order of Sanctions

A

11(c)(6) - (1) described sanctioned conduct; AND (2) explain the basis for the sanction

27
Q

What is required under initial disclosures?

A

26(a)(1) - (1) any information that SUPPORTS the party’s claim/defense; (2) for def.: insurance policy that will cover liability for the action

28
Q

Who can interrogatories be served upon?

A

party(s) ONLY

29
Q

Who can requests for production of documents be served upon?

A

party(s) OR anybody else (MUST be served with subpoena)

30
Q

Who can be deposed?

A

party(s) OR anybody else (MUST be served with subpoena)

31
Q

Does any case have the right to jury trial?

A

NO. - (1) has to be properly demanded; AND (2) has ot pass the historical test

32
Q

Historical Test

A

assess two things (1) whether the issue/claim is equitable or legal; AND (2) whether the remedy sought is equitable or legal

33
Q

Equitable

A

specific performance (prelim. injunction)

34
Q

Legal (historical test)

A

compensatory relief (contract cases)

35
Q

How can any atty fight a peremptory challenge based on sex/racial bias?

A

Batson framework - (1) establish a prima facie case for discrimination; (2) opposing party must give permissible explanation; (3) striking party show that explanation was pretextual; (4) court determines whether bias or not

36
Q

Elements of MSJ

A

FRCP 56 - (1) movant must show no genuine dispute as to any material fact; and (2) show that they are entitled to judgment as a matter of law

37
Q

What must the movant do when they file an MSJ

A

(1) meet their burden of production; (2) support its assertions with specific documentary evidence OUTSIDE of the pleadings

38
Q

Requirements of Judgment as a Matter of Law

A

(1) opposing party must have been heard on the issue; (2) no fair-minded jury could find legally sufficient evidence to find for opposing party; (3) issue is ESSENTIAL to the party’s claim/defense

50

39
Q

When must a party filed judgment as a matter of law?

A

55(a) - PRIOR to when the jury begins deliberating
55(b) - after the jury delivers a verdict ONLY IF a 55(a) motion was filed prior to the start of deliberation

40
Q

What is threshold for a new trial motion?

A

FRCP 59 - the verdict was against the clear or great weight of the evidence presented to the jury

41
Q

Can a judgment or order be set aside?

A

60(a) - court may set aside and make changes if there was a clerical mistake
60(b) - party can file a motion under specific circumstances set in 60(b)(1)-(6); filed no later than a year for (1)-(3) but 1 yr. is not guaranteed

42
Q

Checklist for Claim Preclusion

A

(1) is preclusion sought on same claim as previously asserted in prior lawsuit? (2) is preclusion sought against someone who was a claimant or in privity with a claimant in prior lawsuit? (3) did the prior litigation result in a valid, final judgment on the merits? (4) any exceptions to claim preclusion?

43
Q

Transactional Test

A

used to determine whether claim is the same as the prior lawsuit: if it arose out of the same transaction or occurrence

44
Q

In Privity

A

guardian, class action, executive estate, successors in interest, employer/employee relationship

45
Q

Valid Judgment

A

proper jurisdiction

46
Q

Final Judgment

A

NOT summary judgment; is after trial

47
Q

On the Merits

A

Any judgment for claimant=on the merits
Against claimant=on the merits EXCEPT 41(b)

48
Q

Exceptions to Claim Preclusion

A

Restatement (Second) of Judgments 26(1) - subject matter jurisdiction, pl. able to split claim, policy involving reoccurring wrong; policies overcome (precedent)

49
Q

Checklist for Issue Preclusion

A

(1) Is preclusion sought on same issue that was already litigated and determined in the prior suit? (2) Was determination of the issue ESSENTIAL to the judgment in the prior litigation? (3) Was the holding on the issue in a valid, final judgment on the merits? (3) Is preclusion sought against a person who was a party in the prior litigation or in privity with a party in the prior litigation? (5) Who is seeking preclusion? (6) are there any exceptions

50
Q

Non-Mutual Defensive Preclusion

A

Traditionally: not allowed
Modern: allowed (Blonder-Tongue)

51
Q

Non-Mutual Offensive Preclusion

A

If yes to any, could be unfair=not allowed
(1) could pl. have joined prior lawsuit?; (2) is it fair? (a) did def. lack incentive to litigate vigorously in 1st lawsuit; (b) is judgment relied upon inconsistent with previous judgments; (c) were procedural opportunities NOT available in 1st lawsuit that are available in current one

52
Q

Exceptions to Issue Preclusion

A

Restatement (Second) of Judgments 28 - can’t be used against someone who cannot appeal; intervening change; new determination of issues; deferred in class (higher burden in 1st case); clear/convincing adverse effect on society (not important in 1st case); not fair chance at adjudication

53
Q

Can you use issue preclusion against the U.S.?

A

Restatement (Second) of Judgments 28(5)(a) - NO.

54
Q

State/State Preclusion

A

same effect in second state that first state has

55
Q

State/Fed. Preclusion

A

1738 - same effect as state has

56
Q

Fed./State Preclusion

A

Not firmly decided - state respect fed. court rules

57
Q

Fed./Fed. Preclusion

A

87 - fed. law to govern

Law School - First Semester (4 decks)

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