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Civil Procedure > Civ Pro II Final > Flashcards

Civ Pro II Final Flashcards

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Civil Procedure 1L flashcards
1
Q

FRCP 8(a)2 Complaint

A

A pleading that sates a claim for relief must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Distinguishing, claims, facts, and bald conclusions of law

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2
Q

Twombly

A

Reinterpretation of conley, no set of facts language.

PER FRCP 8 and 12b, claim need not be probably but plausible.

Plausible as enough facts to raise reasonable expectations that discovery will reveal sufficient evidence

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3
Q

Spectrum

A

Possible–>Plausible–>Probably

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4
Q

Iqbal

A

Twombly plausible standard applies in all civil cases.

Courts are supposed to accept factual allegations as true at pleading stage.

Threadbare facutal allegations need not be presumed true

Dissent: Major improperly equated plausible with probable

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5
Q

Webb

A

Tennessee supreme court rejects twiqbals standards

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6
Q

American nurses

A

Dismissimal improper if glimmering of viable legal theory

need not set forth complete and convincing picture of claims

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7
Q

Notice Pleading 9(b)

A

If alleging fraud or mistake a party must state with particularity the circumstances constituting fraud of mistake. Malice, intent, knowledge, and other conditions of a persons mindset may be alleged generally

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8
Q

Motion to Dismiss FRCP 12(b6)

A

failure to state a claim upon which relief can be granted

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9
Q

Demurrer Cal CCP 430.10

A

Hybrid of motion to dismiss and motion for more definite statement

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10
Q

Answer 8(b)

A

1) admit of deny allegations
2) general and specific denials made in good faith
3) Can deny part of allegation
4) Party that lacks knowledge or information sufficient to form a beleif about the truth of an allegation must state so.
i) has the effect of a denial
5) Allegations not denied are deemed admitted
6) affirmative defenses, must be stated in order to be admitted

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11
Q 
Frcp 15 (a) 
Amendments, by right stipulation and leave of court
A

Amendments, by right stipulation and leave of court

i) can amend once 21 after service
ii) with other party’s written consent or . or courts leave

Limited grounds to deny leave to amend dilatory motive and undue prejudice

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12
Q

FRCP 15 (c) Amendments, by right stipulation and leave of court

A

An amendment to a pleading relates back to the date of the original pleading filed

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13
Q

FRCP 15 (d) Amendments, by right stipulation and leave of court

A

On motion and reasonable notice, the court may permit a party to serve a supplemental pleading setting out any transaction that happened after the date of the pleading to be supplemented. Court may permit supplementation even though the original pleading is defective.

Generally granted unless it causes undue delay, prejudice, or made in bad faith

Due process: finality/accuracy v. efficiency

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14
Q

FRCP 11 Deterring Frivolous pleadings

A

1) All pleadings, motions and other papers submitted to the court must be signed
2) does not need to be verified
3) by subbmitting a paper to the court:

Attorney of prp per certifies to the best of his knowledge information and beleif that:

1) Factual contentions are warranted by existing law or propose a non frivoulous change in law.
2) Factual conentions have or will likely ahve evidentiary support
3) cant be used for improper purpose like harrassment or unnecessary delay, or needlessly increast the cost of litigation

Duty not to persis with pleading contentions for which no evidentiary support found

21 day safe harbor provision to withdraw challenge pleading

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15
Q

Sanctions

A

1) Court can impose sanctions on its own via an OSC
2) Motions for sanctions does not need to be filed with the court, but served on the other party and give them a chance to correct.
3) Attorney must show evidence that he tried to fix it out of court, and court was the last step int he process.

Hadges: an attorney may rely upon clients objective reasonable representations.

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16
Q

SLAPP

A

Strategic Lawsuits against Public Participation

Intended to silence/discourage defendants public criticism of plaintiff actions/projects

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17
Q

Antislapp motions

A

1) In CA, D must prove claims related to constitutionally protected activities and that D is likely to prevail on the merits
2) P then must prove legitimate claims
3) Filing Antislapp motion stays discovery
4) 2003 Revision: Antislapp motions are improper if Ps claims are brought in public interest

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18
Q

Counter claims

A

A counterclaim is when D brings a claim against P in the same lawsuit

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19
Q

Cross claim

A

is when a D sues another D

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20
Q

FRCP 18(a) Joinder of Claims

A

A party asserting a claim, counter claim, cross-claim or 3rd part claim may join as many claims as it had against an opposing party

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21
Q

FRCP 42(b) Consolidation

A

A court may order a seperate trial of one or more seperate issues for convieniacne, to avoid prejudice or expedite and economize

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22
Q

Rule 42 A Consolidation

A

if actions before the court involve a common question of law or fact the court may:

1) join for hearing or trial any or all matters at issue in the actions
2) consolidate the actions
3) Issue any other order to avoid unnecessary cost or delay

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23
Q

FRCP 13(a) Compulsory counterclaims

A

Pleading must state as a counterclaim any claim the pleader has against an opposing party if the claim arises out of the transaction or occurrence that is the subject matter of the opposing party;s claim and does not require adding another party who the court cannot acquire JXN

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24
Q

Exceptions to 13(a)

A

1) claim is subject of another pending action

2) no personal JXN

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25
Q

Compulsory counterclaim

A

if logical and immediate relationships

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26
Q

Res Judicata under 13(a)

A

Bring the claim now or forever barred, if claim arose out of same transaction or occurence

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27
Q

FRCP 13(b) permissive counter claim

A

Pleading may state a counterclaim that is not compulsory

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28
Q

FRCP 13(g) Crossclaims against a co-party

A

A pleading may state as a crossclaim any claim by one party against a copart is the claim arises out of the same transation or occurence that is the subject matter of the original action of a counter claim

Or

if the claim relates to any property that is the SJXN of teh original action

Alexander- Cross Claim permitted if logical relationship

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29
Q

Permissive and mandatory joinder of parties Historical

A

Historical limits on joinder of parties: only if damages common to all or caused by all

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30
Q

FRCP 20 Permissive Joinder

A

Permissive joinder parties if logically related to series of occurences or share a common question of law or fact

Plaintiff: Persons may join in one action as P;s if they assert any right to releif jointly or severall or arises out of the same transaction, occurence and common question of law or fact to all D’s arising in the action

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31
Q

FRCP 21 Misjoinder and non joinder of parties

A

1) not grounds for dismissing an action

2) court on motion or on its own may add or drop a part or sever any claim against a party

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32
Q

FRCP 42(a) Consolidation of lawsuits;

A

mechanism to help ensure efficieny and uniform judgements

If actions involve a common question of law or fact a court may:

a) joing for hearing or trial any or all matters at issue
b) consolidate the actions
c) issue any other orders to avoid unnecessary delay or costs

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33
Q

FRCP 19 Required Joinder of parties

A

Persons required to be joined if feasible:

1) Person who is subject to service of process and whose joinder will not deprive the court of SJXN must be joined if:

In that persons absence, court cannot accord complete releif among existing parties OR

Persons claims an interest so situated that disposing of action in persons abscence may:

1) Impare or impede perosns ability to protect interest or leave an existing aprt subject to a substantial risk of incurring, double, multiple or inconsistent obligations

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34
Q

When Joinder not feasible

A

1) Proceed with existing parties or dismiss
Factors:

a) Extent jusgment might prejudice absent part or existing parties
b) extent prejudice could be lessened by protective provisions, shaping releif or other measures
c) adequacy of judgement
d) P would have adequate rememdy if action dismissed for non joinder

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35
Q

Cases on Joinder

A

Bank of Ca-Joinder may not be required if parties are necessary but not indespensable

Provedent-great harm to existing parties and remote to absentee

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36
Q

FRCP 14 Impleader

A

When a defending party (3rd party P) may bring in a thrid party:

1) Defending party may bring a claim against nonparty who is or may be liable
2) Defending party must by motion obtain courts leave if filed more than 14 days after serving its original anwser
3) Permissive rather than compulsory

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37
Q

4 factors to consider in granting leave to implead 3rd party too inc

A

1) Whether movant deliberately delayed or was in derelict in filing the motion
2) whether impleading would unduly delay or complicate trial
3) Whether impleading would prejudice the 3rd party D
4) Whether 3rd party complaint state a claim upon which relief can be granted

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38
Q

FRCP 24 Intervention (non party joins lawsuit)

A

1) By right, on timely motion, court must permit any to intervene who:
1) has a right by federal statute
2) Moveants ability to protect interest imparied/impeded
3) intervention by right may be denied if existing parties adequately represent movants interest

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39
Q

Permissive intervention

A

1) May be granted if commons question of law or fact with the main action
2) May be denied if it would unduly delay or prejudice original parties

40
Q

Smuck case

A

1) Intervention allowed because school board did not adequately represent the intervenor parents interests
2) Interests covered by FRCP 24 not limited to monetary/pecuniary interests

41
Q

FRCP 1367b Supplemental Jxn rules for FRCP 24 and 19

A

2) Does not require supp jxn over claims by plaintiff against persons made parties under rule 19 or 24

42
Q

Interpleader

A

Is a civil procedure that allows a plaintiff to initiate a lawsuit in order to compel two or more other parties to litigate a dispute.

An interpleader action originates when the plaintiff hold property on behalf of another but does not know to whom the property should be transferred. Often used for disputes under insurance contracts.

43
Q

Interpleader terminiology

A

Stake, Stakeholder, Claimants

1) Stake=Insurance proceeds, ownershup in land
2) Stakeholder=Part initiating litigation usually P
3) D’s having interest in stake=claimants

44
Q

FRCP 22 Rule interpleader

A

For persons with claims that may expose a p to double or multiple liability may be joined as D;s and required to interplead.

2) No basis for JXN

3) Independant basis of JXN
Complete diversity between stakeholder and all claimants.
Or Federal question JXN
75K
no deposit required
45
Q

USC 1335 Stautory interpleader

A

Allows an individual with a stake claimed by 2 or more claimants to interplead those claimants and bring them into a singular action

2) civil action of interpleader or nature of interpleader
3) 500 or more
4) Minimal diversity JXN

5) Rule interpleader and statutory interpleader
Diversity JXn and Personal JXN

6)Stake holder deposits funds/property with court where itnerpleader is filed

46
Q

USC 2631

A

District court can prohibit/enjoin proceedings in other state/us court

47
Q

State Farm Case

A

Interpleader device discourages race to judgement against insurer

Interpleader not an all purpose bill of peace for claims/parties unrelated to fund

48
Q

Class Action Terms

A

representative, putative class, class members, certification

Class members are represented in class action but not parties

If a court does not certify putative class, te class action cannot proceed

49
Q

FRCP 23(a) Certification prerequisites

A

Numerosity, commonality, typicality, and adequate representation.

50
Q

Numerosity

A

25 members often too few 40 is often enough

51
Q

Class action dismissal

A

Subject to court approval to avid sweetheart deals

52
Q

1995 PSLRA

A

Lead plaintiff requirements in securities fraud class actions

53
Q

General telephone

A

Lack of commonality between promotion and hiring harms

54
Q

FRCP 23(b) 3 types of class actions

A

Prejudice or limited fund
Injunctive releif
damages

55
Q

Castano

A

Certification improper under FRCP 23b3, predominance and superiority grounds.

Question of law or fact common to class members predominate over any questions affecting only individual members and that a class action is superior to other availible methods for adjudicating the controversy

56
Q

FRCP 23C1C

A

an order that grants or denies class action certification may be altered or amende before final judgement

57
Q

Opt Out

A

1) At time of certification

2) at time of settlement

58
Q

Walmart

A

1) Debates over relevance of disparate imapcts of discrimination classes
2) claims of centralized policy in which gender bias guided personnel choices
3) 5-4 majority holds failure to satisfy FRCP 23a commonality pre-req

4) Unanimous court finds FRCP 23b2 certification improper due to back apy
5) Dissent finds evidence that gender bais suffused defendants corporate culture

6) Walmart and twombly demand something more at preliminary stages of civil litigation

59
Q

Hansberry

A

Adequate representation when conflicting interests among class members

60
Q

Diversity of citizenship class action

A

look to representatives not class members

61
Q

Amount in controversy class action

A

Look to representations not class members

62
Q

2004 CAFA

A

New aggregation rules and minimal rather than complete diversity

63
Q

Shutts

A

1) PJXN Opt out suffices affirmative opt in not required

2) Horizontal choice of law state class members relationship required to apply state law.

64
Q

SOL Class action

A

Indicidual claim for sol run, seeking certification tolls sol for class members

65
Q

Preliminary Injunctive releif

A

CCP 527: Preliminary injunctive releif may be granted at any time before judgment

Sufficient ground from prelim-inj:
Likely to prevail on merits
Balance of harms

66
Q

Seaquist case

A

Use of EPA when seeking a TRO, Party seeking prelim0inj must provide undertaking/security

67
Q

Discovery Devices

A

Interrogatories, RFPS, RFA, Depos

68
Q

Scope of discovery

A

Non privileged matter reasonably calculated to lead to admissible evidence

69
Q

Purpose of discovery

A

to prevent trial by ambush and provide reality check for parties

70
Q

FRCP 37

A

Motion to compel

71
Q

FRCP 26

A

Protective order

72
Q

FRCP 26 mandatory disclosures

A

1) controversial and not used in most states

2) Unilaterally turn stuff over on your own, even if it hurts client

73
Q

FCP 30 Depos

A

May propound 35 ROGS on opposing party, responses due in 30 days

Duty to investigate extends to information within control fo responding parties

74
Q

FRCP 34 RFP

A

Must describe with reasonable particularity items to be produced/inspected

No specified limit on number of production/inspection

Documents to be produced in manner ordinarily maintained

75
Q

3rd party discovery

A

Subpoenas availible for depos/rfp but not for ROGS/RFA

76
Q

FRCP 36 RFA

A

No specified limit on number of requests for admissions

Duty to supplement discover responses if incomplete/inaccurate in smoe material aspect

77
Q

Defenses to discovery

A

1) Attorney client privilege
2) Work Product privilege
3) Undue Burden

HIckman: work product not absolute privilege for materials prepared i anticipation of litigation

78
Q

IF client insis on witholding discoverable docs/info

A

Attorney may need to withdraw

79
Q

FRCP 26 & 37

A

Parties must meet and confer in good faith to resolve discover disputes

Losing party often liable for attorneys fees on discovery motions

80
Q

Cine Case

A

Range of FRCP 37 discovery sanctions includes excluding evidence barring money damages and dismissal

81
Q

Summary Judgment

A

MSJ looks outside four corners of complaint.

Purpose is to pierce the pleading and assess proof to determine need for a trial

82
Q

FRCP 56

A

Standard that there is a genuine issue of material fact

MSJ procedure availible to both parties

All or part of MSJ on particular counts or issues i.e. liability, punitive, damages

83
Q

MSJ in lundeen and cross

A

When material facts hinge on witness credibility

84
Q

Premature MSJ

A

Court may continue hearing to permit non movant to conduct further discover

85
Q

Celotex

A

1) MSJ burden of D movant when P-Non movant bears burden of proof at trial
2) DissentL MSJ distinction between intial burden of production and ultimate burden of persuasion
3) Role of MSJ should be understoof in light of FRCP 8/12b notice pleading standard

86
Q

FRCP 56

A

Party may move for SJ, identyfying each claim or defense

2) Court may grant if movant shows no genuine dispute as to any material favt and movant is entitled to judgment as a matter of law
3) can file at any time until 30 days after close fo all discovery judgments as a matter of law

87
Q

JMOL

A

Occurs during trial before submitted to jury

After other party fully heard at trial

88
Q

RJMOL

A

Occurs post trial after jury verdict

Can only post if jmol was previously done

89
Q

FRCP 50 Standard for JMOL RJMOL

A

Reasonable jury lacks legally sufficient evientiary basis

90
Q

Galloway

A

Substantial evidence scintilla test in light of 7th amendment right to jury trial.

Need more than scintilla of evidence needs sufficient evidentiary basis

91
Q

FRCP 50(a)

A

Permits judge after the witnessess testified and evidence presented, to withhold the case from jury and instead enter judgment as a matter of law if the facts are sufficiently clear to require a particular result.

92
Q

FRCP 50(b)

A

Authorizes similar procedure for cases that have been submitted to the jury once jurors have already reached a verdict.

Motion made no later than 28 days after entry of judgment

93
Q

Res Judicata

A

One judgment will have a binding effect on another

Judgment must be final valif and on the merits

94
Q

Claim Preclusion

A

o A party gets one shot to bring all its claims and alleged damage claims arising from a single set of operative facts, that if a party does not bring certain claims and seek certain damages arising from a single set of operative facts in its first law suit, it will be barred from doing so in a later law suit

o Includes counterclaims

95
Q

Transactional test v. Primary right theory

A

Transactional test- whether claim arose from a single set of operative facts

Primary rights theory focuses on the rights allegedly invaded by the defendant. The claimant has a separate claim for each right violated by the defendant.

Primary rights theory focuses on the wrongful action of the D – all claims derived from the defendant’s wrongful actions are said to be part of the same cause of action, meaning that they are part of the same primary right

The violation of a single primary right gives rise to but a single cause of action.

96
Q

Collateral Estoppel

A

Applies to matters argued and decided in an earlier lawsuit

Judgment must be valid, final, and on the merits

Must have been actually litigated and determined in the first case and the issue must also have been essential to the outcome of the case

Essentiality: if the finding on this issue had come out the other way, would the judgment have been the same?

If yes, then issue is not essential to judgment because judgment does not rest on that issue

97
Q

Defense Preclusion

A

Second action by original d in which he seeks to raise defenses that were equally availible in the first action but were not advanced there.

Civil Procedure (2 decks)

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