Civ Pro II Midterm

Question 1

FRCP 8(a) requires

Answer 1

“a short and plain statement” of the jurisdiction, statement of the claim, and a demand for the relief which the plaintiff seeks

Question 2

does FRCP 8(a) require a lot fo detail

Answer 2

not when discovery and procedural will fill in the gaps

Question 3

what is 8(a)(2)

Answer 3

right to relief; must provide short and plain statment of the claim showing that the P is entitled to relief

Question 4

what are the 7 “special matters” under FRCP 9

Answer 4

o Denial of any party’s legal capacity to be sued 9(a)]
o The circumstances giving rise to an allegation of fraud or mistake [9(b)]
o Any denial of the performance or occurrence of a condition precedent [9(c)]
o The existence of jusgements or official documents the pleader relied upon [9(d) & (e)]
o Material facts of time and place [9(f)]
o Special damages [9(g)]
o Certain aspects of admiralty and maritime jurisdiction [9(h)]

Question 5

what does FRCP 8(c) do

Answer 5

theories must be set forth separately and in good faith

Question 6

what does FRCP 10(b) indicate

Answer 6

separate-statement requirement; each count or paragraph of a pleading be limited to a statement of a single set of circumstances

Question 7

what does FRCP 9(g) require

Answer 7

“special matters” be pleaded with particularity if they are to be raised at trial

Question 8

what does FRCP 8(a)(3) have to contain

Answer 8

specific recovery

Question 9

what does FRCP 54(c) order

Answer 9

that it does not differ or exceed from the court pleading

Question 10

what does FRCP 12(a) do

Answer 10

Gives D 21 days from the service of the complaint to respond either by motion pursuant to rule 12 or by answer.

Question 11

what are the 7 reasons someone may dismiss under 12(b)

Answer 11

1 Lack of subject matter jurisdiction [12(b)(1)]
2 Lack of personal jurisdiction [12(b)(2)]
3 Improper venue [12(b)(3)]
4 Insufficiency of process [12(b)(4)]
5 Insufficiency of service of process [12(b)(5)]
6 Failure to state a claim [12(b)(6)]
7 Failure to join a party under Rule 19 [12(b)(7)]

Question 12

what does 12(f) do

Answer 12

allows things that are redundant, immaterial, impertinent, or scandalous to be stricken from a pleading

Question 13

under FRCP 8 for a denial, what 3 responses can the defendant make

Answer 13

admit, deny or plead

8(d) holds all averments the D does not respond are considered admitted

Question 14

what does FRCP 8(c) list

Answer 14

19 affirmative defenses

Question 15

what are the three questions to determine if there is a logical relationship between defense and the complaint?

Answer 15

1. whether the matter may be said to constitute a necessary or extrinsic element in the P’s cause of action
2. which party has better access to the relevant evidence; and
3. policy considerations - should the matter be indulged or disfavaored

Question 16

what does FRCP 7 allow

Answer 16

P to make a reply when the D answer contains a counterclaim, or whenthe court specifically orders it

Question 17

what does FRCP 15 allow

Answer 17

a party to amend their complaints before and during trial

Question 18

15(a)

Answer 18

amendment may be made once any time before a response has been served. if within 21 days if no response is required

Question 19

15(b)

Answer 19

amendment is allowed when the evidence is onjected to as being outside the scope of the pleadings

Question 21

15(c)

Answer 21

amendment related back to the date of the original pleading under 3 circumstances:
1. statutory provisions [15(c)(1)]
2. single event [15(c)(2)]
3. change of party [15(c)(3)]

Question 22

15(d)

Answer 22

calls for attention to the court any occurrences related to the original cause of action, but have occured after the original filing of the original pleading

Question 23

FRCP 11

Answer 23

requires that every pleading of a party must be signed by at least one attorney

Question 24

11(c)(1)(a)

Answer 24

safe harbor provisions - the party seeking sanctions serves a motion on the other party, but may not file the motion with the court unless the challenged party has not acted within 21 days

Question 25

11(c)(2)

Answer 25

discretionary nature - provides that sanctions “shall be limited to what is sufficient to deter repetition of conduct” court are apt to apply Rule 11 by striking an offensive pleading or censuring the offending lawyer. Monetary sanctions, if imposed, are usually paid to the court

Question 26

11(d)

Answer 26

inapplicability to discovery - that these rules do not apply to discovery abuse, which is covered instead by Rules 26 through 37

Question 27

24(a)

Answer 27

intervention of right: on timely motion, the court must permit anyone to intervene who:
- is given an unconditional right to intervene by a federal statute
- claims an interest relating to the property or transaction that is the subject of the action,
- disposing of the action may impair the movant’s ability to the protect its interest, unless existing parties adequately represetn the interest

Question 28

24(b)

Answer 28

permissive intervention: in general, on timely motion, the court may permit anyone to intervene who:
- is given a conditional right to intervene by statute or
- has a claim for defense that shares with the main action a common question of law or fact

Question 29

1391(b)(1)

Answer 29

venue; civil action may be brought in a judicial district in which any defendant resides if all defendants are residents of that state

Question 30

1391(b)(2)

Answer 30

venue; civil action may be brought in a jduciial district where a substantial part of the events or porperty giving rise to the claim is located

Question 31

24(b)(3)

Answer 31

delay or prejudice in intervention: in exercising its discretion, the court must consider whether the intervention will delay or prejudice the adjudication of the original parties’ rights

Question 32

24(c)

Answer 32

intervention: notice and pleading required: a motion to intervene must be served on the parties as provided by rule 5 and must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought

Question 33

18(a)

Answer 33

a party asserting a claim, counterclaim, or crossclaim, or third-party claim may join, as independent or alternative claims, as many claums as it has against an opposing party

Question 34

18(b)

Answer 34

joinder of contingent claims: a party may join two claims even though one of them is contingent on the disposition of the other, but the court may grant relief only in accordance with the parties relative substantive rights

Question 35

19(a)(1)

Answer 35

required party

Question 36

19(b)

Answer 36

if a person who is requried to be joined if feasible cannot join, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed

Question 37

20(a/b)(1/2)

same rules just a for plaintiff and b for defendant

Answer 37

P/D may be joined if they assert any right ot relied jointly or with respect to claims arising out the same transactions or if any questions of law or fact common to all P/d will arise the action

Question 38

13(a)(1)

Answer 38

compulsory counterclaim; a pleading must state as a counterclaim any claim that at the itme of servie the pleader has against an opposing party if the claim
- arises out of the same T/O that is the sumject matter of the opposing party’s claim
- does not require adding another party over whom the court cannot acquire jurisdiction

Question 39

13(a)(2)

Answer 39

exceptions to counterclaim: the pleader need not state the claim if:
-when the action was commenced the claim was the subject of another pending action or
-the opposing party sued on its claim by attachment or other process that di dnot estbalish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule

Question 40

13(b)

Answer 40

permissive counterclaim: a pleading may state as a counterclaim against an opposing party any claim that is not compulsory

Question 41

13(c)

Answer 41

relief sought in a counterclaim: a counterclaim need not diminish or defeat the recovery in kind fro the relief sought by the oppposing party. it may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.

Question 42

13(g)

Answer 42

crossclaim against a coparty: a pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the T/O, or property, that is th esunject matter of the original action or of a counterclaim. the crossclaim may include a claim that the coparty is or may be liable to the corssclaimant for all or may include a claimthat the coparty is or may be liable to the crossclaimant

Question 43

13(h)

Answer 43

joining additional parties: rules 19 and 20 govern the addition of a party as a party to counterclaim or crossclaim