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Civ Pro > Civ Pro II Final > Flashcards

Civ Pro II Final Flashcards

1
Q

Three elements of a claim under Rule 8a

A
  • Jurisdiction
  • Statement of a claim
  • Relief
  • May only be filed after reasonable inquiry (Rule 11)
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2
Q

Req for statement of claim

A
  • Facts must give rise to a plausible entitlement to relief
  • May not simply state conclusions
  • Short & plain statement except for fraud or special damages
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3
Q

Care and Candor Rule 11

A

Every pleading, written motion, and other paper must be signed with a certification after an inquiry reasonable under the circumstances that:

  • Proper purpose
  • Legal contentions are warranted
  • Factual contentions have evidentiary support
  • Denials of factual contentions are warranted
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4
Q

Rule 12 motions - issues of forum selected by the P

A

FRCP 12b1 = SMJ
FRCP 12b2 = PJ
FRCP 12b3 = Venue

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5
Q

Rule 12 motions - issues about the way complaint was served

A

FRCP 12b4 = insufficient process

FRCP 12b5 = insufficient service of process

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6
Q

Rule 12 motions - issues about the content of the complaint

A

FRCP 12b6 = failure to state a claim
FRCP 12e = vague or ambiguous and requires a more definite statement
FRCP 12f = redundant, immaterial, impertinent, or scandalous material

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7
Q

What defenses must be waived at first defensive filing

A

FRCP 12b2 = PJ, 3 = venue, 4 = insufficient process, 5 = insufficient service of process
- These are all threshold issues which should be decided upfront

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8
Q

What defenses must be waived at trial before entry of judgment

A 
12b6 = failure to state a claim - goes to power of court
12b7 = failure to join a party - may become apparent later in litigation
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9
Q

What defenses can be waived at any time

A

12b1 = SMJ - SMJ goes to power of court, the court has no power to act

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10
Q

How a party may respond to allegations in answer

A

Rule 8b = admit, deny, lack sufficient information

  • Rule 8c assert affirmative defenses
  • Any claims by D (counter claim)
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11
Q

Joinder of claims general rule

A

Rule 18
- Party asserting a claim, counter claim, cross claim, or third party claim may join, as independent or alt claims, as many claims as it has against an opposing party

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12
Q

Permissive joinder of parties for the plaintiff

A

May join if arises out of the same transaction, occurrence, or series of transactions or occurrences and Q of law or fact common to all Ps (Rule 20a1)

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13
Q

Permissive joinder of parties for the defendant

A

May be joined if any right to relief is asserted against them jointly, severally, or that arises out of the same transaction, occurrence, or series of trans. or occurrences and any Q of law or fact common to all Ds will arise in the action

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14
Q

Counter claims

A

Rule 13a&b

  • A claim against the opposing party
  • Can be compulsory and permissive
  • Compulsory if arise from same transaction or occurrence
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15
Q

Cross claims

A

Rule 13g

  • Claim against co party
  • Not compulsory
  • Only be asserted where the claim arises from same transaction or occurrence or claim relates to property that is subject of OG action
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16
Q

Impleader

A

Rule 14

  • Claim by a defending party vs a non party who is or may be liable to the defending party for all or part of the claim against the defending party
  • The defending party becomes third party plaintiff
17
Q

Supplemental jurisdiction

A
  • In any civil action which federal courts have OG jurisdiction, they can have jurisdiction over claims that are related that they are same case or controversy
18
Q

Exceptions to supplemental jurisdiction

A

May decline if:

  • Claim raises a novel or complex issue of state law
  • Claim substantially predominates over claim(s) over which the district court has OG jurisdiction
  • District court has dismissed all claims over which it has OG jurisdiction or
  • In exceptional circumstances there are other compelling reasons for declining jurisdictions
19
Q

What is discoverable

A

Rule 26b1a may discover all matter that is

  • non-privileged
  • Relevant to any partys claim or defense
  • Proportional to the needs of the case
  • Whether or not admissible as evidence
20
Q

Limits to discoverable under 26b1a

A
  • Privilege or work product under 26b5

- Protective order under 26c1 for annoyance, embarrassment, oppression, undue burden or expense

21
Q

Proportional under discoverable rule 26b1a

A
  • importance of the issues at stake in action
  • AIC
  • Parties relative access to relevant information
  • Parties resources
  • Importance of the discovery in resolving the issues and
  • Whether the burden or expense of the proposed discovery outweighs its likely benefit
22
Q

Tools for formal discovery

A
  • Mandatory disclosures Rule 26a1-3 (only to support your claims or defenses)
  • Interrogatories Rule 33
  • Depositions Rule 30 (Parties or non parties, oral or in writing)
  • Request to produce documents Rule 34 (can only be made to another party)
  • Physical or mental exam Rule 35
23
Q

Discovery sanctions

A
  • Rule 26g is the rule 11 of discovery
  • Partial failure to answer
  • Complete failure to answer
24
Q

Dismissing the case before trial

A
  • Voluntary dismissals rule 41a
  • Involuntary dismissal Rule 41b
  • Summary judgement Rule 56
25
Q

Summary Judgement summarized

A

Summary judgement is a vehicle for determining whether the facts are in dispute at all - not for trying facts

26
Q

Judgment as a matter of law

A
  • Court finds reasonable jury would not have a legally sufficient evidentiary basis to find for the party on the issue the court may:
    + Resolve issue against the party and
    + Grant a motion for judgement as a matter of law against party on a claim or defense
  • After trial before jury
27
Q

Post-trial motions

A
  • Rule 50b (no legally sufficient evidentiary basis to support judgement)
  • Rule 59 new trial (weight of evidence or procedural error)
  • Rule 60 relief from judgment (mistake, fraud, etc)
  • Appeals
28
Q

Renewed judgment as a matter of law

A
  • If court did not grant 50a no later than 28 days after entry of judgement the movant may renew motion
29
Q

Claim preclusion

A
  • Same claim
  • Valid, final judgment
  • judgement was on its merits
  • Same claimant vs same defending party (parties in same configuration)
30
Q

Issue preclusion

A
  • Same issue
  • Issue was litigated as part of the first case
  • Party had a full and fair opp. to litigate the issue
  • Issue was actually decided
  • Resolution of the issue was essential to the judgement

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