civ pro ii

Question 1

Rule 7(a)

Answer 1

says what pleadings are: complaint; answer to a complaint; answer to a counterclaim designated as a counterclaim; answer to cross claim; third party complaint; answer to third party complaint; and if court orders one, reply to an answer.

Question 2

Rule 8(a)

Answer 2

• Rule 8(a): General rules of pleadings; “short and plain statement”;
  1) A short and plain statement of the grounds for the court’s Jdx
  2) A short and plain statement of the claim showing that the pleader is entitled to relief
  3) Demand for judgment for the relief sought

Question 3

Pre answer Motion 12(b)(6)

Answer 3

failure to state a claim upon which relief can be granted; Even if the facts are true, court can’t do anything about it, “so what?”

Question 4

New Rule: “TWIQBAL” 12(b)(6) failure to state a claim

Answer 4

a. “Enough facts to state a claim to relief that is plausible on its face”
b. “Complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when P pleads factual content that allows the court to draw the reasonable inference that D is liable for misconduct alleged”

Question 5

Formula for Twiqbal

Answer 5

(1) Accept as true all FACTUAL allegations, not LEGAL conclusions
(2) Determine whether facts plausibly give rise to entitlement of relief
- —-Content specific, common sense, life experiences, judicial expertise, or other more likely explanations

Question 6

Rule 9(b) Fraud or Mistake

Answer 6

in alleging Fraud or mistake, a party must state with particularly the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. (have to be specific: time/place)

Question 7

Stradford v. Zurich (fraud/mistake)

Answer 7

where P alleging insurance fraud against Dentist, court said failed to identify the lie and give “fair notice” of precisely which statement they allege to be false; counterclaim didn’t state w/ particularity; Court used Rule 15(a) to allow leave to amend.

Question 8

Rule 9(c) Conditions Precedent

Answer 8

(1) In pleading Conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. (2) But when denying that condition precedent has occurred or been performed, a party must do so with particularity

Question 9

Rule 9(g)

Answer 9

If an item of special damage is claimed, it must be specifically stated

Question 10

Allocating the Elements of a Claim (General Rules)

Answer 10

(1) Pleading - Party w/ burden of pleading (a element of a claim)
(2) Production- Has burden of production (burden to produce evidence to demonstrate allegation, to satisfy the claim)
(3) Burden of Persuasion (persuading trier of fact who’s telling truth)

Question 11

Jones v. Bock

Answer 11

court says pleading exhaustive remedies is D’s burden; court looks to rule 8(c) affirmative defenses

Question 12

Rule 8(d)(2)

Answer 12

A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes
alternative statements, the pleading is sufficient if any one of them is sufficient

Question 13

Rule 8(d)(3)

Answer 13

A party may state as many separate claims or defenses as it has, regardless of
consistency

EXCEPT: Keep in mind Rule 11: ethical limitations, not making frivolous claims or be sanctioned

Question 14

Rule 12(a)(1)

Answer 14

tells us how many days to respond; 21 days if no waiver; 60 days if waiver of service; 90 days if outside US;

Must answer to a counter-claim or crossclaim within 21 days of being served w/ pleading

(1) Default Judgment (Rule 55)
(2) Pre-Answer Motion: stops the clock; 14 days after order on motion
(3) Answer: need to answer to the substantive matter of the claim, pleading defenses/counterclaims if any

Question 15

Rule 12(b) (pre-answer motions)

Answer 15

May be asserted in a pleading or by motion

1. Lack of SMJ
2. Lack of PJ—raise it or waive it Rule 12(h)(1)
3. Improper venue—raise it or waive it
4. Insufficient process—raise it or waive it
5. Insufficient service of process—raise it or waive it
6. Failure to state a claim upon which relief can be granted (Motion to dismiss, demurrer)
7. Failure to join a party under Rule 19 (Required joinder of parties)

Rule 12(b) motions are not applicable to responding to affirmative defenses (ie failure to state a claim, improper venue, lack of PJ etc.)

Question 16

Rule 12(c) Motion for Judgment on the Pleadings:

Answer 16

After the pleadings are closed, but early enough not to delay trial, asking to rule on a question of law only, and no factual dispute.

the difference between motion for summary judgment and motion for judgment on the pleadings is that one is done after pleadings “early” summary judgment and the other is done after discovery

Question 17

Rule 12(e) Motion for more definitive statement

Answer 17

a) if vague and ambiguous that party cannot reasonably prepare a response
b) Must be filed before a responsive pleading and must point out defects of complaint of and details desired
c) If motion granted, and other party doesn’t obey within 14 days, then court may strike initial pleading (the ambiguous pleading)

Question 18

Rule 12(f) Motion to Strike

Answer 18

a) a court may strike an insufficient defense, redundant, immaterial, impertinent, or scandalous matter from a pleading
b) Court may act (1) on its own; or (2) on motion made by a party either before responding to a pleading or within 21 days after being served

Question 19

Rule 8(b)(1)

Answer 19

In responding to a pleading, party MUST:

1) state in short and plain terms its defenses to each claim asserted against it; and
2) Admit or deny the allegations asserted against it by an opposing party

Question 20

Rule 8(b)(2)

Answer 20

A denial must fairly respond to the substance of the allegation

Question 21

Rule 8(b)(3) General Denials

Answer 21

i) A party that intends in good faith to deny all the allegations of a pleading— including the jurisdictional ground—may do so by a general denial. (Blanket denial)
ii) 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

Question 22

Rule 8(b)(4) Partial Denial

Answer 22

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

Question 23

Zielinski Case

Answer 23

where D entered general denial; P thought was denying the negligence and not that they were not employers of driver. Compliance with rule required that D file a more specific answer. Equitable estoppel to make D admit. (colorable fact, had same insurance company as real employer)

Question 24

Rule 8(b)(5)

Answer 24

Lack of Knowledge –

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

Question 25

Rule 8(b)(6)

Answer 25

Failure 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 required an allegation is considered denied or avoided.

Question 26

Rule 8(c)

Answer 26

Affirmative Defenses –

list includes SOL; must be in first responsive pleading; raise it or waive it

**list is non-exhaustive as seen in JONES v. BOCK

Question 27

Rule 7(a)(3) and (7)

Answer 27

Replies to answers allowed only if:

i) The answer contains a counter-claim (designated as counterclaim)
ii) the court orders one
iii) Rule 12(h)(2)– legal defense, failure to state a claim upon which relief can be granted, may be raised at any time

Question 28

Rule 15(a)(1)

Answer 28

Get to amend once as a matter of course (freebie), without asking the court within:

i) 21 days of serving (original) pleading, or
ii) 21 days after service of responsive pleading (that requires answer, any type of complaint, or counterclaim, if pleading is one to which responsive pleading is required)
iii) 21 days after service of 12(b) Defenses; 12(e) Definitive statement; 12(f) Strike; whichever is earlier

P= 21 days after serving; 21 days served

D= 21 days of being served; and if answer has counter-claim 21 days after serving it

Question 29

Rule 15(a)(2)

Answer 29

Other amendments are allowed “only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires”

Question 30

Reasons to Deny Request for Amending Pleading per SCOTUS

Answer 30

i. Undue delay
ii. Bad faith or dilatory (waiting too long) motive by movant
iii. Repeated failure to cure deficiencies
iv. Futility of the amendment (pointless)
v. Prejudice to opposing party:
(1) burden on party opposing amendment;
(2) Court determines prejudice on particular facts of the case: requires legal analysis. Court’s discretion, Appeals has standard of review abuse of discretion, will defer to trial court

Question 31

Aquaslide Case (amendment)

Answer 31

court allowed amendment;

D not act in bad faith (depended on 3 insurance companies);

No prejudice (allowing amendment wouldn’t destroy litigation);

No Abuse of Discretion (the issue was of substantial material fact which if resolved would relieve D of liability)

Question 32

Rule 15(a)(3)

Answer 32

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.

Question 33

Rule 15(c)(1) Relation Back

Answer 33

Amendment to a pleading relates back to date of original pleading when:

(1) (a): The law that provides the applicable statute of limitations allows relation back;
(1) (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; or
(1) (c): The amendment changes the party or the naming of the party against whom a claim is asserted if, Rule 15(c)(1)(B) is satisfied and if within the (90 d) period provided by rule 4(m)(90 days) for serving the summons and complaint, the party to be brought in by amendment:
(1) received notice of the action that it will not be prejudiced on defending on the merits; and;
(2) Knew or should have known that the action would have been brought against it, but for the mistake concerning the property party’s identity

Question 34

Moore v. Baker (no relation back)

Answer 34

plaintiff’s original complaint did not give sufficient notice to D of claim now being asserted thus NO RELATION BACK

Question 35

Bonerb Case (yes relation back)

Answer 35

Claim 1 was about falling on b-ball court due to D’s failure to supervise; Claim 2 counseling malpractice;

thus court rules claim 2 derives out of common nucleus of operative facts (sufficient notice given to D based on 1st claim)

Question 36

Rule 18(a) [Joinder of Claims]

Answer 36

(a): A party asserting a claim, counterclaim, cross-claim, or third-party claim may join as
independent or alternative claims as many claims as it has against an opposing party.
May does not equal can, must have SMJ over each claim

Question 37

Compulsory Counterclaims [Rule 13(a)(1)]

Answer 37

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:

i) Arises out of same transaction or occurrence that is subject matter of opposing party’s claim

AND

ii) Does not require adding another party over whom the court cannot acquire jdx

Exceptions: when action commenced, claim was subject of another pending action

Question 38

Permissive Counter Claim [Rule 13(b)]

Answer 38

A pleading may state as a counterclaim… any claim that is not compulsory

–might be permitted, not must, not within same t/o not same c/c

–will need independent basis for jdx if not within supplemental jdx

Question 39

Cross Claim [Rule 13(g)]

Answer 39

A pleading may state as a crossclaim any claim by one party against a coparty if:

i) same transaction or occurrence
ii) relates to any property that is subject matter of og action
ii) may include claim that the coparty is or may be liable to the cross-claimant for all or part of the claim asserted in the action against the cross-claimant

Question 40

Permissive Joinder [Rule 20(a)(1)] PLAINTIFFS

Answer 40

Persons may join in one action as PLAINTIFFS if:

i) assert any right to relief jointly, severally, or in the alternative w/ respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
ii) any question of law or fact is common to all Ps will arise in the action

Question 41

Permissive Joinder [Rule 20(a)(2)] DEFENDANTS

Answer 41

Persons may be joined in one action as DEFENDANTS if:

i) Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and

ii) Any question of law or fact common to all DEFENDANTS will arise in the action

Question 42

Misjoinder/Nonjoinder of Parties (RULE 21)

Answer 42

Misjoinder is NOT a ground for dismissing an action.

On motion or on its own, the court may at any time, on just terms, add or drop a party.

The court may also sever any claim against a party.

Question 43

Impleader [Rule 14(a)(1)] DEFENDING PARTY

Answer 43

When a defending party may bring in a third party. 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…obtain court’s leave if it files the 3rd party complaint more than 14 days after serving its original answer.

i) Derivative Liability
ii) Right to indemnity under the substantive law (tort or contract)

Question 44

Impleader [Rule 14(a)(2)] “Third-Party Defendant”

Answer 44

a. Must assert any defense against the third-party P’s claim under Rule 12; (raise it
or waive it)

b. Must assert any counterclaim against the third-party P under Rule 13(a) (compulsory) and may assert any counterclaim against the third-party P under Rule 13(b) (permissive) or any cross claim against another third-party D under Rule 13(g) (cross claim against coparty related to)
c. May assert against the P any defense that the third-party P has to the P’s claim; and (A sues B, B sues C third party, C may assert defense that B may have or claim against A)
d. May also assert against the P any claim arising out of the transaction or occurrence that is subject matter of the P’s claim against the third-party P.

Rule 14(a)(5): D2 may implead a non-party who is or may be liable to 3rd party D for all or part of any claim against it

Question 45

IMPLEADER [Rule 14(a)(3)]- Plaintiff’s claims against a third party D

Answer 45

Plaintiff may assert against the 3rd D any claim arising out of the transaction or occurrence that is the subject matter of the P’s claim against the 3rd P. The 3rd party P 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).

Question 46

Compulsory Joinder

Answer 46

a. Steps to Analysis:
1. Rule 19(a) Is the person required?
i. Can the court accord complete relief among the existing parties? (If yes, party is not required)
ii. Would disposing of the action w/out the person, because the person claims an interest relating to the subject matter of the action;
iii. Impair or impede person’s ability to protect person’s interest (yes= required) OR
iv. Leave existing person subject to substantial risk of inconsistent obligations?

YES=required

Question 47

Joint Tortfeasors

Answer 47

not required parties rather merely permissive parties [Temple v. Synthes]

Question 48

When Joinder is Not Feasible

Answer 48

court must decide whether in equity or in good conscious, the action should proceed or should be dismissed

FACTORS TO CONSIDER:

1) WILL JUDGMENT RENDERED IN PERSON’S ABSENCE PREJUDICE PERSON OR EXISTING PARTIES?
2) COULD PREJUDICE BE LESSENED OR AVOIDED BY: (1) PROTECTIVE PROVISIONS IN THE JUDGMENT; (2) SHAPING THE RELIEF; OR (3) OTHER MEASURES?
3) WOULD JUDGMENT IN PERSON’S ABSENCE BE ADEQUATE?
4) WILL PLAINTIFF HAVE AN ADEQUATE REMEDY IF ACTION WERE DISMISSED FOR MISJOINDER?

Question 49

INTERVENTION OF RIGHT [24(a)]

Answer 49

Court MUST permit anyone to intervene who:

1. UPON TIMELY MOTION,
2. Is given an unconditional right to intervene by federal statute; OR
3. Claims an interest relating to the property or transaction that is the subject of the action
4. AND is so situation that disposing of the action may as a practical matter IMPAIR OR IMPEDE MOVANT’S ABILITY TO PROTECT ITS INTEREST, (IS THE MOVANT SO SITUATED THAT DISPOSING OF THE ACTION WITHOUT WOULD HURT MOVANT?)
5. UNLESS existing parties adequately represent Movant’s interest

Question 50

Permissive Intervention [Rule 24(b)]

Answer 50

Court MAY permit anyone to intervene who:

a) UPON TIMELY MOTION
b) Has a claim or defense that shares w/ the main action a COMMON QUESTION OF LAW OR FACT

24(b)(3): In exercising its DISCRETION, the court must consider whether the intervention will unduly DELAY, OR PREJUDICE the adjudication of the ORIGINAL PARTIES’ RIGHTS

Question 51

Rule 42 (Consolidation)

Answer 51

Consolidation:

If actions involve common question of law or fact, court may: join for hearing or trial any or all matters at issue in actions; consolidate; issue other orders to avoid unnecessary cost or delay

Question 52

Rule 42 (Separate Trials)

Answer 52

For convenience, to avoid prejudice, or to expedite, court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third- party claims.

Question 53

Rule 55 (Default Judgment)

Answer 53

If party fails to plead or otherwise defend, court may enter default judgment.

Except, may be vacated because every party has right to day in court.

Question 54

Rule 41(a)(1) Voluntary Dismissal

Answer 54

Voluntary Dismissal may occur on your own, by right before an answer has been served:

1. By court order
2. At any time if the parties agree
3. Dismissal is without prejudice, not on the merits, allows Plaintiff to refile

Question 55

Rule 41(b): Involuntary Dismissal

Answer 55

when party fails to prosecute or follow scheduling order, a defendant can move to dismiss the action.

Unless the order states otherwise, dismissal operates as an adjudication on the merits.

Preclusive effect, cannot refile.

Question 56

Rule 56(a) (Summary Judgment)

Answer 56

(a) A party may move for summary judgment, identifying each claim or defense-or part
of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

Question 57

Time to file motion (Summary Judgment) [Rule 56(b)]

Answer 57

30 days after close of discovery

Question 58

Judgment as a Matter of Law [Rule 56(c)]

Answer 58

“Assuming allegations are true, as a matter of law, the other side can’t win”

i. After adequate time for discovery, against a party who fails to make showing sufficient to establish the existence of an element essential to that party’s case AND on which THAT PARTY WILL BEAR THE BURDEN AT TRIAL
ii. Movant can meet its burden by showing–pointing out– ABSENCE OF EVIDENCE to support the nonmoving party’s case [CELOTEX]

Question 59

Burden Shifting (Summary Judgment)

Answer 59

Once Movant has carried its burden, established a prima facie case, the responsibility then shifts to the nonmoving party to show that there is, in fact, a genuine issue of material fact.

THE NONMOVING PARTY MUST COME FORWARD WITH SPECIFIC FACTS SHOWING THERE IS A GENUINE ISSUE FOR TRIAL [BIAS]

–(i) Inferences in favor of nonmovant, court must draw from the evidence all justifiable inferences in favor of the nonmovant [BIAS]

–(ii) Nonmoving party must do more than simply show there is some metaphysical doubt as to its material facts, must specifically CONTRADICT the evidence presented by moving party.

Question 60

Rule 56 (c) [Summary Judgment- Procedure]

Answer 60

A party asserting that a fact cannot be or is genuinely disputed must support that assertion by:

i. Citing to particular parts of materials in the record (admissible evidence)

ii. Showing the materials cited do not establish the absence or the presence of
genuine dispute

iii. Party can object that material cited cannot be presented in a form that would be
admissible in evidence

iv. Court need only consider cited materials, but may consider other materials in the
record

v. Affidavits or Declarations: must be made no personal knowledge, admissible in
evidence, and show that declarant is competent to testify in court

Question 61

When facts are unavailable to non-movant [Summary Judgment- Rule 56(d)]

Answer 61

court may:

i) defer considering the motion or deny it
ii) allow time to obtain
iii) issue any other appropriate order

Question 62

Ways to beat Summary Judgment [Rule 56(f)]

Answer 62

When non-moving party:

i) Shows insufficient time to gather evidence
ii) Produces own evidence contradicting movant’s OR
iii) Otherwise shows a rational jury could find for it at trial

Question 63

Rule 50(a) (Directed Verdict) Judgment as a Matter of Law in a Jury Trial

Answer 63

IF party has been fully heard during jury trial, before the case is submitted to the jury, court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue the court may:

i. Resolve the issue against the party and
ii. Grant a motion for judgment as a matter of law against the party on a claim or defense, can be maintained or defeated only with a favorable finding on that issue

Question 64

Rule 50(b): Renewing the Motion After Trial/Judgment Not Withstanding Verdict (after jury verdict):

Answer 64

movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59.

In ruling on the renewed motion court may:

i) Allow judgment on the verdict from jury
ii) Order a new trial; or
iii) DIRECT THE ENTRY OF JUDGMENT AS A MATTER OF LAW

Question 65

CLAIM PRECLUSION

Answer 65

1) SAME CLAIM:
- –“same transaction/occurrence test”: include matters related in time, space, origin, and motivation, must be litigated in a single initial lawsuit, or be barred from being raised in subsequent litigation [CITY OF VANDALIA]

2) SAME PARTIES
- -individuals that are in privity w/ some party; final judgments are conclusive as to parties and their privies

3) AFTER A FINAL JUDGMENT
4) AFTER A FINAL JUDGMENT “ON THE MERITS”

Question 66

6 Exceptions to being bound; Claim Preclusion

Answer 66

i. Substantive legal relationship (successor interest)
ii. Express agreement to be bound by a decision to which one is not a party
iii. Procedural representation/Adequate representation (class action, guardians at litem, trustees)
iv. A party assuming control over prior litigation
v. Party who loses individual suit then sues as the representative of a class
vi. Special Statutes (bankruptcy, probate) expressly forecloses successive litigation by non-parties [Taylor v. Sturgel]

Question 67

Same Claim (Claim Preclusion Rule)

Answer 67

same transaction/occurrence test: include matters related in time, space, origin, and motivation, must be litigated in a single initial lawsuit, or be barred from being raised in subsequent litigation [CITY OF VANDALIA]