Civ Pro Midterm :skull: Flashcards
Rule 7: What kind of pleadings are allowed? (7 kinds)
- complaint
- answer to a complaint
- answer to a counter claim
- answer to a cross claim
- third party complaint
- answer to a third party complaint
- court orders, reply to an answer
Rule 8: The General Rules of Pleading?
Rule that sets forth the general requirements for pleading civil claims in federal courts, including stating a claim for which relief can be granted, admissions and denials, and affirmative defenses.
Rule 8: The General Rules of Pleading specifics?
- requirements for a case to be heard in federal court?
- the elements of a valid claim in federal court?
- how must one address allegations in the claim?
- can a D raise inconsistent claims and defenses?
- what happens if the claim is imperfect, how should the court react?
(a)(1) subject matter jurisdiction: diversity of citizenship OR federal question
(a)(2): P makes a “short and plain statement” showing that she is “entitled to a relief”
(a)(3): P must make a request for judgment
(b) in short and plain language: admit OR deny to EVERY allegation in the complaint, IF she lacks sufficient information to admit or deny, state it in answer which will be treated as a denial
(b)(3) general denial: denial of everything in complaint, only possible IF done in good faith
(c) affirmative defenses: a nonexhaustive list of defenses that MUST be raised in their initial response OR they MAY be waived.
d(3) inconsistent claims or defenses: party MAY state as many separate claims or defenses, REGARDLESS of consistency
(e) imperfect pleading: court should allow the case to proceed RATHER than dismissal
Rule 8: The General Rules of Pleading and the effect of Twombly & Iqbal?
- DISREGARD legal conclusions
- consider ONLY factual allegations
- assess plausibility RATHER THAN possibility
- provide SUFFICIENT factual support
Rule 8: The General Rules of Pleading list of affirmative defenses? (substantive defenses)
- contractual and payment-related defenses
- arbitration and award
- failure of consideration, payment, and release
- negligence and liability defenses
- fraud and misconduct defenses
- equitable defenses
- judicial and statutory defenses
- res judicata: The doctrine, also known as claim preclusion, that prevents a plaintiff from filing a later claim that is related in its factual basis to an earlier claim already adjudicated between the same parties.
Rule 9: Pleading Special Matters? (the three kinds of misrepresentations) (TPN)
- time of misrepresentation
- place of misrepresentation
- nature of misrepresentation
Rule 10: Form of Pleadings? (what is the structure of a pleading)
- court’s name
- a title
- file number
- rule 7 designation
- paragraphs
- seperate statements
Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions? (what does the pleading document require)
(a): signature and identification requirement
(b): reasonable investigation
(b)(1): document is NOT presented for an improper purpose
(b)(2): warranted by law
(b)(3): factual allegations have evidentiary support
(b)(4): denials of factual allegations have evidentiary support
Rule 11: Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions? (what happens when you violate the pleading requirements)
(c) sanctions: EITHER the court can impose it OR opposing party can draft a motion for sanctions. CANNOT be drafted immediately, must serve and let breaching party fix her mistake within 21 days.
- sanctions are meant to deter NOT punish
- clients can only be sanctioned if there is bad faith
- brought seperately from the answer to the complaint
- applies only to written documents
Rule 12: Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing? (procedural defenses, how can a D respond to a complaint before filing a motion?)
(a): D must serve an answer within 21 days after being served the complaint. P waived service, D has 60 days.
(e): motion for more definite statement, RARE, occurs when complaint is too vague or ambiguous that D CANNOT respond
(f): permits parties to strike, asks the court to get rid of parts of a document to remove irrelevant information from case
Rule 12(b): List of defenses and how and when they must be used?
- lack of subject matter jurisdiction
- lack of personal jurisdiction
- improper venue
- improper process
- improper service of process
- failure to state a claim on which relief can be granted
- failure to join an “indispensable” party
- if motion is denied, 14 days to respond
- 2, 3, 4, 5 = asserted in D’s FIRST rule 12 response, or else waived
- 6 and 7 can be asserted any time throughout trial, not waived, UNLESS D asserts them after trial
- 1 can be raised at any time
Rule 15: Amended and Supplemental Pleadings?
- gives parties the right to amend their pleading in certain circumstances
- parties may move for a “leave” to amend their pleadings at any time
Rule 15(a): Amendments BEFORE Trial?
- can be done ONCE WITHOUT needing court permission IF:
1. within 21 days after serving the pleading
2. after 21 days: needs opposing party’s written consent OR court’s permission when justice so requires
Rule 15(a): When is “justice so required” by the courts? (BRUUF)
- bad faith
- repeated failure to cure deficiences
- undue dulay
- unfair prejudice
- futility of amendment
Rule 15(b): Amendments DURING trial? (when is it allowed)
- courts may allow amendment at any time during trial if it will aid in the presentation of the case AND WILL NOT prejudice the objecting party
Rule 15(c): amending and “relating back”? (when do they relate back?)
- amended pleading relates back to the date of original pleading, allowing P’s to avoid SoL when the amendment arose out of the conduct, transaction, or occurrence set out in the original pleading + naming of a new party against whom a claim is asserted
- relates back when the new D knew OR should have known that it would have been named initially but for a mistake in identity (krupski) (90 day limit)
- “same nucleus of operative facts” (bonerb)
Rule 15(d): new facts arising after initial pleading? (supplemental pleading, what do party’s need to do, and what can the court allow?)
- party can file a supplemental pleading to add facts
1. party MUST get court’s permission UNLESS party consents
2. court can allow the supplemental pleading EVEN IF the original pleading was defective
Rule 16: Pretrial Conferences; Scheduling; Management? (what does the court need to do?)
- requires the court to enter a “scheduling order” within 90 days after a D is served
- pretrial litigation
- establishes deadlines
Rule 20: Permissive Joinder of Parties? (when are P’s and D’s allowed to join in as co-persons?)
(a)(1): permits multiple P’s to join as co-P’s if their claims arise from the same transaction OR occurrence AND raise at least one common question
(a)(2): permits multiple D’s to join as co-D’s in the same circumstances IF the claim against them arise from the same transaction or occurrence AND raise at least one common question
Rule 26(a): Duty to Disclose; General Provisions Governing Discovery? (what is required of each party at three points in litigation WITHOUT request by parties?)
(a)(1) Initial required disclosures: identify persons who have discoverable information + produce documents that constitute discoverable material + calculation of damages + identify insurance coverage
(a)(2): identification of expert witnesses and information who will testify at trial
(a)(3) pretrial required disclosures: after discovery, and are getting ready for trial, each party set forth every contention it will raise at trial + witnesses + evidence
Rule 26(b): What is discoverable by parties?
parties may discover any nonprivileged matter proportionally as relevant to the case
Rule 26(f): what must the parties do?
parties must meet and confer
Rule 26(g): what is the court allowed to do? (interrogatory)
authorizes the court to impose sanctions on a party making an unfounded objection to an interrogatory
Rule 30: Depositions by Oral Examination?
- A discovery procedure, conducted without direct judicial oversight, in which witness testimony is taken under oath and memorialized by a court reporter.
- party or nonparty, must serve a notice of deposition + reasonable time and place
- 10 depositions, 1 day, 7 hours
- unable to conclude within 7 hours, must ask court for more time
- can depose organizations, need to specify who within organization
- courts usually do not let organizations change their statements
- can depose and request documents that are relevant
