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Capstone > Civ Pro Pre-Trial and Trial > Flashcards

Civ Pro Pre-Trial and Trial Flashcards

1
Q

What are the types of pleadings allowed under the Rules of Federal Procedure

A

(1) complaints
(2) answers to complaints
(3) answers to counter-claims
(4) answers to cross-claims
(5) third-party claims
(6) answers to third-party claims
(7) replies to answers where ordered by the court

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2
Q

What must a complaint contain?

A

(1) a short and plain statement of the grounds for the court’s jurisdiction

(2) a short and plain statement of the claim showing that the pleader is entitled to relief

(3) a demand for relief

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3
Q

What should a “short and plain statement” do?

A

It should contain sufficient factual matter to state a plausible claim that is more than a sheer possibility that a defendant has acted unlawfully

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4
Q

May a pleading make inconsistent claims or defenses?

A

Yes

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5
Q

Is it proper for a pleading to include a statement of a claim or defense like below:

Plaintiff alleges that Defendant negligently broke her arm. Plaintiff also alleges that Defendant intentionally broke her arm.

A

Yes, a pleading may state one or more statements of a claim or defense alternatively or hypothetically.

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6
Q

Are technical defects in a pleading a problem?

A

Not if it does not prejudice a substantial right of the parties

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7
Q

Is evidentiary material required in the complaint?

A

No, only the factual matter which is sufficient to set up a plausible claim for relief

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8
Q

What matters must be plead with particularity?

A

(1) if it is required to show that the court has jurisdiction, the capacity or authority to sue

(2) fraud, mistake, or condition of the mind

(3) conditions precedent when denying a condition occurred

(4) time and place when testing the sufficiency of a pleading

(5) special damages

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9
Q

What is required of an answer to a complaint?

A

The responding party must admit or deny the allegations

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10
Q

Can a responding party to a complaint admit part of an allegation but not all of it?

A

Yes

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11
Q

What happens if the responding party fails to answer an allegation

A

It is deemed to admitted

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12
Q

What is an affirmative defense?

A

it is a defense that relies on factual issues not present in the complaint

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13
Q

When asserting an affirmative defense, what is required?

A

the additional facts must be presented

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14
Q

What are the affirmative defenses that must be in an answer? (name at least 8)

A

(1) accord and satisfaction
(2) arbitration and award
(3) assumption of risk
(4) contributory negligence
(5) duress
(6) estoppel
(7) failure of consideration
(8) fraud
(9) illegality
(10) injury by fellow servant
(11) laches
(12) licenses
(13) payment
(14) release
(15) res judicata
(16) statute of frauds
(17) waiver

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15
Q

When might a challenge to jurisdiction or other procedural matters be brought?

A

In the answer or in a pre-answer motion

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16
Q

When should a pre-answer motion be brought?

A

Before an answer.
Dude…if you didn’t get this I don’t know what to tell you.

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17
Q

What matters might be brought in a pre-answer motion?

A

(1) subject-matter jurisdiction
(2) personal jurisdiction
(3) improper venue
(4) insufficient process
(5) insufficient service of process
(6) failure to state a claim upon which relief can be granted
(7) failure to join a party under Rule 19

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18
Q

Can pre-answer motion matters be brought together?

A

Yes

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19
Q

What happens if the pre-answer motion fails to bring a defense or challenge?

A

Unless it is subject-matter jurisdiction, failure to state a claim, or failure to join a party, cannot be brought again and the challenge is considered waived.

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20
Q

When might a motion to dismiss for failure to state a claim, failure to join, or failure to state a legal defense be made?

A

(1) in any pleading made or ordered under rule 7(a)
(2) by a motion under rule 12(c)
(3) at trial

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21
Q

How much time does someone have to answer a complaint?

A

(1) 21 days after service of process
(2) 60 days after waiver of service to a US party
(3) 90 days after waiver of service to a foreign party

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22
Q

If a pre-answer motion is denied, how long does an answering party have to respond to the complaint?

A

14 days

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23
Q

When may a party amend a pleading as a matter of course

A

(1) within 21 days of service of the OG complaint
(2) or within 21 days after service of an answer, a motion to dismiss, a motion for a more definite statement, or a motion to strike

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24
Q

What factors are considered when a court permits a party to amend?

A

(1) the reason for delay in raising the matter
(2) prejudice to the opposing party due to the delay

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25
What does the Doctrine of Relation Back mean for amended claims?
a court will treat an amendment as though it had been filed with the original pleading as long as it arises out of the same conduct or transaction, or occurrence as the original claim
26
What does the Doctrine of Relation Back mean for added parties?
the court will treat it as filed at the same time as long as: (1) amendment asserts a claim or defense that arises from the same conduct, transaction, or occurrence (2) the party to be added by the amendment received notice of the original action within 90 days of service of the claim (3) the party that was added should have known or knew that the original action would have been asserted against it
27
Per Rule 11, what must be on every pleading, written motions, and other paper filed with the court?
(1) the signature of the attorney or unrepresented person (2) signer's address, e-mail address, and telephone number
28
What happens if a document does not comply with Rule 11?
the court must strike the unsigned paper unless the omission is promptly corrected
29
Rule 11 does not apply to what documents?
Discovery matters
30
When submitting a document under Rule 11, what is the individual certifying?
(1) the document is not being presented for any improper purpose (2) the claims, defenses, and other legal contentions are warranted by existing law, or nonfrivolous arguments for extending, modifying, or creating new law (3) factual contentions have evidentiary support or will likely have evidentiary support (4) the denials of factual contentions are either warranted on the evidence or are reasonably based on belief or lack of information
31
When might sanctions be brought under Rule 11?
A motion may only be made after providing notice to the opposing party and providing 21 days to correct or withdrawal
32
What is the purpose of provisional relief?
maintain the status quo and prevent irreparable damage
33
What must a party establish for provisional relief?
(1) a substantial likelihood of success on the merits (2) irreparable harm unless the relief is sought (3) harm to the plaintiff is higher if relief is not granted than the harm to the defendant if granted (4) will not be adverse to public interest
34
What must a court do if granting provisional relief?
require the moving party to give security to cover the costs and damages to any party who is wrongfully enjoined or restrained
35
When might a TRO be granted without notice to the adverse party?
(1) specific facts clearly show immediate and irreparable injury, loss, or damage will result before the adverse party can be heard (2) movant's attorney certifies that she made efforts to provide notice and the reasons why notice should not be required.
36
May a preliminary injunction be issued without notice?
no
37
What must be included in a granting of provisional relief?
(1) state the reasons for issuance (2) state specific terms for the order (3) state the act(s) prohibited or required
38
What must an order for provisional relief not do
be a reference to the complaint or other document
39
Is a party able to join multiple claims against a single defendant?
Yes, even if they are unrelated
40
What may a court do if the joinder of claims may result in prejudice or impair judicial economy?
Order a separate trial
41
What is a compulsory counter-claim
a claim arising from the same transaction or occurrence as the original claim
42
What is a permissive counter-claim
a claim arising out of a separate transaction or occurrence
43
If the claims include permissive counter-claims, what must the claimant show?
That there is an independent ground for federal jurisdiction
44
What is required for cross-claims?
They must either: (a) arise from the same transaction or occurrence (b) have an independent basis for jurisdiction
45
What are impleader claims?
Where the defendant moves against a third-party which may be jointly or totally liable
46
What is a contribution claim?
A claim that shifts part of a party's liability
47
What is an indemnity claim?
A claim that shifts all of the party's liability
48
When must a defendant bring a third-party claim?
Within 14 days of filing their answer
49
What is required for multiple permissive parties to be joined
(1) joined parties claim relief or face liability out of the same transaction or occurrence (2) question of law or fact is common to the joined parties
50
When is joinder compulsory?
(1) a party's absence would prevent complete relief (2) adjudication without the party would impair or impede them from protecting their interests or leave an existing party subject to double or multiple obligations
51
What factors does a court weigh if compulsory joinder defeats jurisdiction?
(1) the extent to which absence might prejudice that person or existing parties (2) extent to which prejudice could be lessened or avoided (3) judgment rendered in absence would be adequate (4) relief granted would be adequate remedy
52
What is Rule 22 interpleader?
Where a party herself initiates interpleader due to the claim(s) impact on their interest
53
What is statutory interpleader
The owner of property which may be claimed may interplead all possible claimants
54
What is intervention?
Where a non-party asserts a right or interest in the ongoing action
55
When is intervention timely?
(1) length of time the non-party knew or should have known of the action (2) extent of prejudice that the existing parties may suffer due to delay (3) likelihood and gravity of prejudice to non-party if denied
56
When is intervention permissive?
(1) the non-party's interests are represented adequately (2) disposing of the action would not impair their ability to protect their interests (3) they are not asserting a protectable interest relating to the property or transaction (4) a federal statute does not confer an absolute right to intervention
57
Where intervention is permissive, what is the court's authority?
discretionary
58
What are the requirements for class actions?
(1) numerosity - separate joinder for each party is impracticable (2) commonality - same question of law or facts (members have the same injury) (3) typicality - claims or defenses are typical for each member of the class (4) adequacy of representation - representative party can fairly protect and represent each member's interest
59
What else must be shown for a class action?
One of the below: (1) separate actions would carry the risk of inconsistent or varying judgments (2) opposing party has acted or refused to act on grounds generally applicable to the class (3) common questions predominate over individual questions
60
When is notice to a class necessary?
Where the common questions of law or fact exist
61
When is notice not necessary?
When the relief is injunctive or declaratory
62
When should the parties have a discover conference?
Within 21 days of a scheduling order
63
When may a court impose sanctions for discovery pretrial conference?
(1) party fails to appear (2) substantially unprepared to participate (3) fails to obey an order
64
What are mandatory disclosures during discovery?
(1) the name and known phone numbers and addresses of individuals likely to have discoverable information (2) a copy or description of all documents (3) computation of damages (4) insurance agreements
65
When must mandatory disclosures be made?
within 14 days of the discovery conference
66
What else must a party disclose?
(1) identity of any witness that may testify at trial (2) any expert witnesses final written report (3) non-expert witness's subject matter of testimony and summary of the facts an opinions
67
What must a party disclose within 30 days of trial?
(1) names and contact information for each possible witness (2) list of witnesses presented through deposition (3) doscuments or physical evidence the party expects to present
68
What happens if a party fails to disclose mandatory information?
The evidence may be excluded
69
What is a party's right to discovery?
(1) any nonprivileged matter (2) any matter relevant to any party's claim or defense (3) proportional to the needs of the case
70
Other than attorney client privilege, what else may be priviledged matters
(1) doctor-patient (2) spousal (3) psychotherapist-patient (4) priest-penitent
71
When may attorney work-product be discoverable?
(1) otherwise discoverable under Rule 26(b)(1) (2) party shows substantial need and undue hardship
72
What objections are available during deposition?
Any objection that may be made if the witness were testifying in trial
73
May objections to a deposition be waived?
Yes, if they are untimely
74
What is the time limitation on answering interrogatories?
30 days after service
75
How may questions are permitted in interrogatories?
25
76
When may a request for documents be made?
Within 21 days after the summons or complaint are served
77
What must a party do with relation to ESI?
(1) identify the important ESI (2) legal hold to ensure no data is destroyed (3) transferred from company to legal counsel to determine relevance (4) prepared for review (5) turned over to opposing party per agreed specifications
78
When a court determines that the destruction or loss of evidence was intentional, what may the court do?
(1) assume the evidence was unfavorable to the party (2) instruct the jury to presume the evidence was unfavorable (3) dismiss the action or enter a default judgment
79
What happens if a party fails to comply with an order to compel
Court may issues ordering: (1) facts sought favor requesting party (2) prohibiting disobedient party from supporting or opposing claims or defense involved (3) striking pleadings in whole or part (4) staying further proceedings until obedience (4) rendering default judgment (5) treating the disobedience as contempt of court
80
When might sanctions be given outside of disobeying court orders?
(1) failure to appear at deposition (2) failure to answer or object to an interrogatory
81
What standard are a court's determination of voluntary dismissals under?
discretion
82
What involuntary dismissals are with prejudice?
(1) failure to state a claim (2) failure to prosecute
83
When might a dimissal for failure to state a claim be without prejudice?
The defect can and should be rectified
84
Who may not be subject to default judgements?
a minor or incompetent person
85
When is a right to a jury trial absolute?
(1) by statute (2) when relief is monetary
86
How many preemptory challenges may a party have?
Three
87
What are reasons a juror may not be excused?
race, ethnicity, or gender
88
What must the party wishing a juror to be excused prove?
That the excusal is not on a discriminatory ground
89
Up to when can a party object to jury instructions?
Before deliberations
90
What are motions to dismiss?
(1) lack of subject-matter jurisdiction (2) lack of personal jurisdiction (3) improper venue (4) insufficient service (5) insufficient process (6) failure to join a party (7) failure to state a claim
91
Who may make a motion to strike?
(1) either party within 21 days after service (2) the court on its own
92
When must a motion for a more definite statement be made?
Prior to answering a complaint
93
When is summary judgment granted?
When the moving party shows there is no genuine dispute to any material fact and the movant is entitled to judgment as a matter of law
94
How long does a party have to move for summary judgment?
30 days after close of discovery
95
How is evidence viewed in a motion for summary judgment?
In the light most favorable to the non-moving party
96
When may a party move for a judgment as a matter of law?
After the end of the other party's case
97
When is it proper for a party to move for a renewed motion for judgment as a matter of law
Within 28 days after the entry of judgment and the party timely moved for a judgment as a matter of law
98
Define additur and remittitur
remittitur - decreasing the award additur - increasing the award
99
Is additur permitted in a federal court
no
100
Why might a court provide relief from a judgment or order?
(1) mistake (2) new evidence that could not have been discovered before trial (3) fraud, misrepresentation, or misconduct by the opposing party (4) the judgment is void (5) the judgment has been satisfied (6) any other reason which justifies relief

Capstone (4 decks)

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