Civil Procedure Flashcards
Pleading a Claim for Relief
- Short and plain statement of grounds for jurisdiction;
- Short and plain statement of claim showing entitlement to relief; and
- Demand for relief sought.
Responding to Pleading
Must
1. State defenses to each claim; and
2. Admit or deny allegations:
a. Fairly respond to substance of allegations.
b. General denial, specific denial, or deny except those specifically admitted.
c. Except for amount of damages, deemed admitted if response required and allegation is not denied.
Rule 11 Sanctions
- Limited to what would deter repetition of similar conduct:
- non-monetary directive
- financial penalty paid to court
- reasonable attorney’s fees and expenses paid to movant, in motion
- No monetary penalty on client if only attorney violates Rule.
- Firm has joint and several liability for attorney sanctions.
Impleader
Permits defendant to bring in third party if
1. Third party is or may be liable to defendant
2. For all or part of claim against defendant.
Must serve Summons and Third-party Complaint on third party defendant.
Leave of court required if defendant seeks to file more than 14 days after serving original Answer.
Appeals - Statutory Exception
Immediate appeal as of right re:
- Injunctions
- Receiverships
- Orders affecting possession of personal property
- Other appeals per statute
Certified Appeal Exception
District court certifies certain grounds for immediate appeal; and
Court of Appeals agrees to permit.
Made within 10 days after entry of order.
Appeals - Collateral Order Doctrine
Allows immediate appeal when interlocutory order:
- Conclusively determines disputed question;
- Resolves important issue completely separate from merits of action; and
- Is effectively unreviewable on appeal from final judgment.
Writs of Mandamus and Prohibition
Allows for appeal in exceptional circumstances where abuse of judicial authority.
Mandamus: require court to act
Prohibition: require court to end litigation
Pendent Appellate Jurisdiction
Seeks review of non-final order along with another appealable order currently pending before CoA.
Non-final order is inextricably intertwined with appealable decision; or review of non-appealable is necessary to ensure meaningful review of appealable.
Appeal - Certification of Class Action
Petition for permission to appeal is filed within 14 days after order entered; and
CoA agrees to hear.
Motion for Judgment on the Pleadings
May be made after Answer and at any time early enough not to delay trial.
100-Mile of Courthouse Rule
Establishes PJ over party if:
- Party joined to action under Rule 14 (Third-Party Practice) or Rule 19 (Required Joinder);
- Served within U.S.;
AND
- Served within 100 miles of courthouse that issued Summons.
What must moving party show for Permanent Injunction to be issued? When may it be issued?
- Irreparable injury
- Legal remedies inadequate to compensate (money damages cannot compensate for harm)
- Balance of hardships to parties favors injunction
AND - Public interest not dissolved by injunction
If government is party and government’s interest is public interest, 3 and 4 merge.
Issued only after full trial on merits; plaintiff must actually succeed on merits.
What is procedure for filing Rule 11 sanctions motion?
Cannot file with court without first
- serving motion of offending party;
AND
- giving opponent 21 days to withdraw or correct offending pleading or paper.
Must be made separately from other motions.
What is citizenship for a natural person?
Determined by domicile:
- residence; AND
- subjective intent to make state their permanent home.
Both must exist concurrently.
Residence in more than one state for extended period requires review of factors such as residence, voter registration/records, vehicle registration, location of bank accounts, and place of employment.
