Civ Pro Questions Flashcards
Rule 14- Impleader Elements
- non-party
- who is or may be liable to the defendant
- for all or part of the plaintiffs claim against them
Rule 15 Relation Back- Issue
- Law of statute of limitation allows relation back
2. T&O
Rule 15 Relation Back- Party
- period in rule 4m
- party to be brought in received notice of action and not be prejudiced in defending on the merits
- knew/should have known that action would have been brought against it but for a mistake concerning identity
Rule 19 Required Joinder of Party- Elements
- plaintiff cannot get complete relief unless absentee is joined
- absentee may be prejudiced if not joined
- defendant may be prejudiced if absentee not joined
Rule 20 Permissive Joinder of Parties
- transaction or occurrence; and
2. common question of law or fact
Rule 22- Interpleader
Claims that may expose a party to double or multiple liability
Rule 24- Intervention- of Right
- Right to intervene via fed. statute
2. interest may be harmed without joinder
Rule 24- Intervention- Permissive
- Right to intervene via fed. statute
2. claim or defense has one common question of law or fact.
Rule 26- Discovery- Tools
- Depositions
- Interrogatories
- Request to Produce
- Medical Exam
- Request to Admit
Rule 41- Voluntary Dismissal of Actions
- before opposing party serves an answer or a motion for SJ
- w/permission from all parties
- effect: w/o prejudice unless claim previously dismissed
Rule 50- JMOL
- Fully heard
- during jury trial
- reasonable jury would not have a legally sufficient evidentiary basis to find for the other party
- opposing side has to have presented their case
Rule 50- RMJMOL
- Fully heard
- during jury trial
- reasonable jury would not have a legally sufficient evidentiary basis to find for the other party
- no later than 28 days after entry of judgment.
Rule 56- Summary Judgment
- there is no genuine dispute as to any material fact; and
2. the movant is entitled to judgment as a matter of law
Matthews Test
- Private interest that will be affected by official action
- The risk of erroneous deprivation through the procedures used & probably value of additional steps/safeguards
- Government interest, function involved and fiscal & administrative burdens
Rule 8- Claim for Relief
- Statement of court jurisdiction
- Short & plain statement of claim showing entitled to relief (Twombly, Iqbal, Rule 9(b) & 9(g))
- Demand for relief sought (damages, injunction, etc.)
Twombly & Iqbal
- Court ignores conclusions of law
- Must plead facts supporting a plausible claim
- Court uses exp. & common sense to decide plausibility
What justifies Sanctions
- proper purpose
- basis in law
- basis in fact
Rule 26- Discovery Initial Disclosures
- General info- contact info - name, address, phone # of subjects
- Copy or location of docs, ESI, and tangible things
- Computation of damages
- Any applicable insurance policy
- Timing:
- within 14 days of sched. conf. (existing parties)
- within 30 days of being served (added parties)
Rule 26- Scope of Discovery
Parties may obtain any non-privileged matter that is relevant to any partys claim or defense- Exceptions- privileged material and work product (trial prep. materials)
Jury Trial- elements
- Look at remedy desired to determine if law or equity claim- Damages- legal/Injunction equity
- What does the remedy do? - equity goes to the judge/ law goes to jury
- Mixed goes to jury for legal, then judge rules on equity
Summary Judgment- Moving Party has Burden of Proof
Must prove every element of each claim to be awarded SJ To defeat: Only one element has to be disputed to show genuine issue of material facts -e.g. 30 priests
Summary Judgement- Moving Party does not have Burden of Proof
Show absence of evidence for opposing partys claim
Rule 50- New Trial Ruling Requirement
If a court rules on a RJMOL motion, it must also conditionally rule on any motion for new trial.
Claim Preclusion
- A valid final judgment on the merits- Everything except decisions based on procedure, Jurisdiction, Venue, Indispensable party, rule 19 joinder
- Same claimant against same defendant
- Same claim (cause of action)
Issue Preclusion
- Valid final judgment
- Had to be actually litigated
- Essential to the judgment
- Used against whom? -May be asserted against same parties or party in privity from previous case
- Mutuality rule- used by whom?- Old rule- only someone in the prior case. New rule- non-mutual offensive/defensive CI.
Triggers of Due Process
- Liberty Interest
- Property Interest
- Grievous Loss
What satisfies Due Process
Right to be heard:
- in a meaningful time (before deprivation occurs)
- in a meaningful manner (appropriate for the circumstances)
Goldberg vs. Matthews tests (evidentiary hearing vs. written)
Time to serve a Rule 12 responsive pleading?
If in D’s answer or an answer to a counter/cross claim= 21 days
Which are the waivable 12(b) motions if not made in the first responsive pleading (either motion or answer)?
12(b)(2)- Personal Jurisdiction
12(b)(3)- Venue
12(b)(4)- insufficient process
12(b)(5)- insufficient service of process
What criteria are used to determine whether to grant a 12(f) motion to strike
Immaterial, impertinent, or scandalous material
Which 12(b) motions are you able to use through trial?
12(b)(1)- This is never waivable
12(b)(6)- usable through trial
12(b)(7)- usable through trial
Rule 11 Requirements
- Signature- you can’t forget this
- Representations to the court- attorney certifies to the best of their knowledge, info. & belief after an inquiry reasonable under the circumstances that:
a. paper is filed for proper purpose
b. claims/defenses/contentions have a basis in existing law or seeks to establish new law or modify or reverse existing law - contentions have or likely will have evidentiary support
- any denials are warranted based on evidence, reasonable belief, or lack of info.
Rule 11 Sanctions
- can be imposed on any attorney or firm
- served on the other party and they are given 21 days to withdraw the offending paper
- Penalty- not necessarily monetary
- court must follow rules to do this
Rule 9- Special Pleadings- Additional Pleading Standards
9(b)- Fraud or Mistake- give particularity
9(g)- special damages- must be plead with specificity
Rule 70- Contempt- difference between Civil/Criminal
Civil- used to compensate or coerce; if court is wrong, you won’t be liable
Criminal- to vindicate the authority of the court; even if court is wrong, you may still be liable
The enforcement is what categorizes crim/civil
Transaction or Occurrence Standard
- Common issue of fact and law
- Substantially the same evidence
- Logical relation between claims (series)
Res Judicata ‘Prevailing Party’ Terms
- if P prevails, claim is ‘merged’ into judgment
2. if D prevails, claim is ‘barred’ by earlier adverse judgment
3 Responses in Answer
- Admit
- Deny
- claim to lack sufficient information
Rule 26(a): Expert Witnesses
Testifying experts:if paid/professional, submit a written report
-90 days before trial or 30 days after other party’s disclosure if solely to rebut their witness
Rule 26(b)(3): Trial Prep. Materials
Work Product rule
- no discovery of docs done in prep. for trial unless: otherwise discoverable and can show substantial need and can show undue hardship in getting equivalent info
- protect attorney thoughts/mental impressions
- overcome by showing ‘hardship’ then limited to items like witness statements- no mental impressions, conclusions, legal theories
Rule 26(b)(5) & (c)- Privileged Info & Protective Orders
- if withholding for privilege you must describe sufficiently to let pop. counsel assess withholding
- if produced, disclosing party must notify pop. counsel must return, sequester, or destroy; take to court to resolve; disc. party must take steps to retrieve
- Protective Order can be granted to avoid annoyance, embarrassment, undue burden, etc.
Burden of Production
-burden of coming up with initial evidence
Burden of Persuasion
-burden of persuading the finder of fact
Summary Judgment- Material Fact
- controlled by the substantive law
- elements of claim will determine whether fact is material
Summary Judgment- Affidavits
- evidence allowed for MSJ
- based on personal knowledge
- facts would be admissible in testimony
- affiant is competent to testify
Motion for Summary Judgment- the Trilogy
Matsushita- no genuine dispute as to a material fact standard; no rational trier of fact could find for n-m party
- Anderson- Persuasion in MSJ- heightened burden at trial= heightened MSJ standard; persuasion to win
- Scott- judges weighing evidence- viewed in light most fav. to non-moving party UNLESS record clearly contradicts; changes standard as apparently judges weigh evidence now
Rule 41(a): Voluntary Dismissal
By P-
(1) w/o court order allowed before opp. party serves an answer or MSJ or when stipulated by both party
- effect is w/o prejudice unless the same claim has been dismissed before
(2) by court at P’s request
- if D has served counterclaim, OK as long as CC can stay for indep. adjudication
Rule 41(b): Involuntary Dismissal
- if P fails to prosecute or comply, D can move to dismiss
- unless otherwise stated, operates as an adjud. on the merits
Rule 41(d): Costs
If P previously dismissed an action on same claim against same D, court may: order P to pay all or part of prev. action cost & stay proceedings until P complies
Judgment as a Matter of Law: Galloway
Dissent sees demurrer & new trial as exceptions; majority view= they show 7th amend. tolerating proc. change
- Dissent
- not like demurrer: had JNOV if didn’t succeed
- not like new trial: NT gives loser chance to produce new evidence
- Directed Verdict= draconian/end of the road
Rule 50(c): JNOV & New Trial
(1) if court grants JNOV, must also conditionally rule on new trial
Rule 60: Relief from Judgment
construed very narrowly
(a) to correct clerical mistake or one from oversight
(b) grounds: 1.misake, neglect 2. newly disc. evidence not avail at trial, 3. fraud by opposing party, 4. judgment is void or satisfied, 5. any other reason justified
Rule 65(a): Preliminary Injunctions
(1) must give notice to party adversely effected
(2) may consolidate hearing w/trial; any admissible evidence becomes part of trial record
Rule 65(b): Temporary Restraining Orders
(1) May use w/o warning if specific facts in affidavit or verified complain show irreparable & immediate harm that will result before adverse party can be heard & attorney verifies attempt to give notice
(2) expires after 14 days unless the court extends
(3) if ordered w/o notice, hearing must be at soonest possible date
(4) adverse party can move dissolve w/2 days notice
Rule 65(d): Injunctions
(1) Content/Scope
- must have reasons why issued
- terms specifically stated
- detail of acts required or restrained
(2) binds the following
- actual notice of injunction- parties, their agents, employees, etc., other people in active concert w/ above
Injunctive Relief: Basics
- applies when $ damages are inadequate
- in pleadings or in motion
- specific performance or forebearance of an act
- reformation, recession, injunction, TRO
- gives no jury trial right
- need good argument why damages isn’t enough
3 Elements of a Rule 19 Party
- is the party necessary?
- can the party be joined?
- is the party indispensable (requiring dismissal)
Rule 19- Elements to help decide to dismiss
- prejudice to the existing parties
- ability to alleviate that prejudice through the judgment or other means
- the adequacy of the judgment without the absent party
- plaintiff’s ability to get relief if the case is dismissed
Rule 59- New Trial & Altering/Amending a Judgment
After a jury trial- for any reason which a new trial has been granted by a federal court.
After a nonjury trial- for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.
Corporations Residence (diversity jurisdiction)
- State of incorporation
2. ‘Nerve Center’- place where the corp. actually ‘directs, controls, and coordinates its activity’
United Mine Workers v. Gibbs
Supplemental (pendant & ancillary) jurisdiction is OK when:
- “Common nucleus of operative fact”
- Two claims would normally be tried together
Codified in sec. 1367. Had the effect of broadening federal jurisdiction.
Section 1367 (a)
Gives supplemental jurisdiction in diversity claims if:
- Claim is so related as to form the same “case or controversy” as federal issue.
