Civil Procedure 36-46 Flashcards
What is the two-part test (under Twombly and Iqbal) that a Federal Court will apply to determine whether a Complaint is sufficiently well pleaded?
Part 1: The court will disregard any conclusory allegations.
Part 2: Taking all remaining factual allegations as true, they will determine whether the facts as alleged would make it plausible for the party to succeed in obtaining the relief sought.
Priority: Low
What must be plead for a well-pleaded Complaint alleging fraud or mistake?
The circumstances constituting fraud or mistake must be alleged with particularity (specific facts must be alleged).
Malice, intent, knowledge, and other conditions of a person’s mind can be alleged generally.
Priority: Low
Under the Federal Rules of Civil Procedure, when maymultiple plaintiffs join in one action (Permissive Joinder)?
If:
Joint and several relief is asserted by them OR the claim arises out of the same transaction or occurrence;
A common question of law or fact to all plaintiffs exist; AND
Subject matter jurisdiction exists for each claim.
*The process is similar for multiple defendants.
Priority: Medium
How many claims may a party bring against an opposing party?
As many claims as it has, EVEN if they are unrelated or do not have a common nucleus of operative fact.
If the claims are brought in Federal Court: at least one of the claims must satisfy Subject Matter Jurisdiction.
Priority: Low
A party MUST be joined in an action if that party is necessary AND joinder is feasible.
When is a party necessary?
A party is necessary if:
The court cannotgrant complete relief without the absent party;
The absent party has an interest in the action that would be impaired or impeded if that person is not joined; OR
The party’s absence would leave an existing party subject to a substantial risk of multiple liability or inconsistent obligations.
Priority: Low
A party MUST be joined in an action if that party is necessary AND joinder is feasible.
When is joinder feasible?
When:
Joinder will notremove subject matter jurisdiction; AND
The court has personal jurisdiction over the necessary party.
*If joinder isn’t feasible, the court will consider whether to continue or dismiss the action.
Priority: Low
In California courts, in a personal injury case, when can a defendant demand a physical examination of the plaintiff as a matter of right?
If:
The examination doesn’t include any diagnostic test or procedure that is painful, protracted, or intrusive; AND
The exam is conducted at a location within 75 miles of the examinee’s residence.
*For non-personal injury cases, a party must make a motion to compel to perform an exam. (Must be made in good faith and show the party’s health is in controversy).
Priority: Medium
In Federal Court, the court MUST permit Intervention as of Right if the non-party can demonstrate what?
That:
The application to intervene is timely;
It has an interest in the subject matter of the action;
The protection of this interest would be impaired because of the action; AND
The non-party’s interest is not adequately represented by existing parties to the litigation.
Priority: N/A
If Intervention as of Right is NOT warranted, a court MAY still allow Permissive Intervention when?
If the non-party:
Files a timely motion; AND
Either:
Has a claim or defense that shares a common question of law or fact with the main action; OR
Is given a conditional right to intervene by a federal statute.
*Courts will consider if the intervention will unduly delay or prejudice the adjudication of the original party’s rights.
Priority: N/A
Class Actions
When can one or more members sue on behalf of an entire class?
The class is so numerous that joinder of all members is impracticable (numerosity);
There are questions of law or fact in common to the class (commonality);
The claims or defenses of the representative parties are typical of the claims/defenses of the class (typicality); AND
The representative parties will fairly and adequately protect the interests of the class (adequacy of representation).
Priority: N/A
Class Actions
Once the class action requirements are met, the class will be certified when?
If:
Separate actions would create a risk of inconsistent adjudications or harm the interest of other members;
The party opposing the class has acted/refused to act on grounds that apply to the class and the grounds of relief would be appropriate to the class as a whole; OR
Common questions of law/fact to the class predominate over questions affecting individual members and a class action is superior to other methods of adjudication.
Priority: N/A
