Civ Pro [the essentials] Flashcards
Venue
1) any district where all the Ds reside
2) any district where a substantial part of the claim arose, or substantial part of property is located
Complaint
State:
1) grounds for SMJ
2) short and plain statement showing P is entitled to relief
3) demand for relief
Must plead sufficient facts to support a plausible claim
Relation back
Amendment after SOL has run
To change D:
-same conduct, transaction and occurrence
-D has such knowledge of the case that they will be able to avoid prejudice
-D knew or should have known that, but for this mistake, thy would have been named originally
Claim joinder
must:
1) arise from the same T + O
2) raise at least one common question of law or fact
Necessary party
1) is party necessary
2) if so–can they be joined?
3) if they cannot be jointed, then can the action proceed without them
Necessary means:
-the court won’t be able to accord complete relief among existing parties without party
-the absentees interests could be harmed if they do not join
-not having them might subject D to multiple obligations
If CANNOT be joined: court must look to
-alternative forum available
-actual likelihood of harm to absentee
-can court sharp relief to avoid harm
Compulsory Counterclaim
arises from same T+O as Ps claim
if not brought then waived
Permissive counterclaim
does not arise from same T+O
will not be waived
Class Action
Requirements:
1) numerosity
2) commonality
3) typicality
4) representation
NIGHT COULD TURN REAL
Medical Exams
Court order is required - parties only
1) health in controversy AND
2) good cause
Scope of Discvoery
Can discover anything relevant to claims and defenses + proportional to the needs of the case
Preliminary Injunction
CAN APPEAL IMMEDIATELY
Must show that:
1) there will likely be irreparable harm if not issued
2) likelihood of success on the merits
3) balance of hardships
4) injunction in the public interest
Temporary Restraining Order
used while waiting for a hearing for a PI
Have to show the same things
maintain the status quo
CAN DO ex parte if can show:
1) file paper under oath showing that without inunction there will be irrerperable harm
2) lawyer must certify in writing about efforts to give notice to D
Motion to Dismiss for Failure to State a Case
Court looks only to allegations of facts in complaint
Do these facts if true state a claim
If made after D has answered - motion for judgement on the pleadings
Motion for SJ
After case is filed and Rule 12 motions done
Must show:
1) there is no genuine dispute of material fact
2) party is entitled to judgement as a matter of law
Motion for Judgement as a Matter of Law
Standard: Reasonable people could not disagree as to the result