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Civil Procedure > Court Rules > Flashcards

Court Rules Flashcards

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Civil Procedure 1L flashcards
1
Q

Commencement of Proceedings

A

Federal Civil Action begins by filing complaint with clerk.

For Diversity Action state law controls when the action begins.

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2
Q

Requirements of a Complaint

A
  1. Short and plain statement of the court’s subject matter jurisdiction.
  2. Short and plain statement showing the claimant is entitled to relief.
  3. A claim for relief sought by the pleader.

Claim for relief: Recovery is not limited to what is claimed, unless it is a default judgment. Get what you prove, not what you ask for.

Notice pleading: The short and plain statement of the claim showing that the pleader is entitled to relief.

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3
Q

Special Pleading

A

Some complaints/defenses require special pleadings

  • Fraud
  • Mistake
  • Claims for Special Damages (Damages that do not ordinarily follow the wrong)
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4
Q

Twombly and Iqbal

A

These cases require that a complaint:

  • All allegations in a complaint state a plausible case for recovery
  • Conclusory claims are disregarded and not entitled to the presumption of truth

Two Step Inquiry

  1. Identify the allegations that are “conclusory” or “mere legal” conclusions [and promptly disregard them]; THEN
  2. Look at the remaining, factual, allegations, and ask whether they add up to a “plausible” case for recovery.

“Plausible” falls in between “probable” and “merely conceivable” {possible}

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5
Q

Defensive Motions (Against a Complaint)

A
  1. Motion to Dismiss
  2. Motion for Judgment on the Pleadings
  3. Motion for a More Definite Statement
  4. Motion to Strike
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6
Q

Motion to Dismiss

A

May be used to raise:

  • Lack of Subject Matter Jurisdiction
  • Lack of Personal Jurisdiction
  • Improper Venue
  • Failure to state a claim upon which relief can be granted
  • Failure to join a necessary party
  • Forum non conveniens
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7
Q

Motion for Judgment on the Pleadings

A

Applies when the pleadings agree entirely on the facts and only the law is in dispute

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8
Q

Motion for a More Definite Statement

A

Asks that the pleading be made more specific.

[Judges usually disfavor this one]

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9
Q

Motion to Strike

A

Can be used to delete from a pleading scandalous or prejudicial matters that are NOT RELEVANT to the case at hand.

Plaintiff can also use to strike legally invalid defenses

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10
Q

Answer

A

An answer is a response to a complaint. May contain a Response, Affirmative Defenses, and/or Counterclaims.

Timing

Ordinarily within 21 days of service of the pleading.

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11
Q

Amendments to Pleadings

A
  1. Amend As of Right: A pleading may be amended once within 21 days of service of pleading or within 21 days of defendant’s response
  2. Amend by leave of Court: After party has spent their “as of right” amend, they can seek to amend with court approval.

Courts should freely grant requests to amend unless it would be prejudicial to other side.

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12
Q

Statute of Limitations and the Doctrine of Relation Back

A

In some circumstances, an amendment is deemed to “relate to the date” the original pleading was filed.

  • If the statute of limitations has NOT yet run, this doctrine does not matter.
  • If the statute of limitations has run, then relation back determines whether the amended pleading is allowed (relates back) or is time-barred.

Rules

  1. An amendment relates back to the date of the original filing IF it concerns the same conduct, transaction, or occurrence as the original pleading.
  2. They key concept is Notice. The amendment cannot have a surprising effect on the party.
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13
Q

Amendments to Add or Change Party

A

RULE: An amendment to add/change party against whom a claim is asserted must:

  1. Concern the same conduct, transaction, or occurrence as the original pleading AND
  2. The party to be added must have known or had reason to know that the action should have been brought against that party but for mistake
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14
Q

Certification of Pleadings

A

Most pleadings do not need to be verified (sworn under oath)

Certification: Pleadings and other documents–including motions and discovery requests–must be (1) signed by the attorney of record and (2) provide the attorney’s contact information.

The attorney certifies that to the best of their knowledge after reasonable inquiry:

  • There is no improper use
  • The legal contentions are warranted by existing law or by non-frivolous argument for the change in law AND
  • The factual allegations have evidentiary support or are likely to have it after discovery

Violation of Certification Requirements

Move to Dismiss

Sanctions (Rule 11)

The attorney bears costs of improper or baseless filings

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15
Q

Permissive Joinder of Parties

A

Joinder of Plaintiffs is governed by Rule 20

Generally, any number of plaintiffs may join IF

  • They assert claims arising out of the same transaction or occurrences or series of transactions or occurrences AND
  • There is a common question of law or fact.

Defendants are governed by the same standard.

Joinder and Diversity Cases

NO party can be joined whose presence would destroy complete diversity, even if all the joinder rules are satisfied

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16
Q

Compulsory Joinder of Parties

A

Joiner by Defendants is Governed by Rule 19

[Terms used are “necessary” and “indispensable” parties]

Necessary Party: A person whose participation in the lawsuit is necessary for a just adjudication because:

  • Absent that party, complete relief cannot be granted
  • The necessary party has an interest in the litigation which will be impeded if the litigation moves forward without that party
  • There is substantial risk of double or inconsistent liability

Necessary parties must be joined if feasible [per jurisdiction rules/limits]

If necessary party cannot be joined then court decides whether to continue or dismiss action

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17
Q

Intervention

A

Intervention: An outsider who volunteers to enter a lawsuit.

[Usually used for people joining as an additional plaintiff]

Intervention as of Right: May be had when the outsider claims an interest in the subject matter of the lawsuit that, as a practical matter, may be compromised by the disposition of the pending action

Permissive Intervention: May be allowed whenever there is a common question of law or fact between the intervenor’s claim and the main claim [relaxed standard]. Court’s discretion to grant.

Intervention must have “reasonable promptness”.

*There is no supplemental jurisdiction for either kind of intervention when jurisdiction is based on diversity.

Diversity

Intervenors must satisfy complete diversity AND have a claim that meets AIC requirement.

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18
Q

Interpleader

A

Generally, interpleader is used to resolve the problem of competing claims to the same property.

Governed by Rule 22

Statutory Interpleader

Federal Interpleader Act

RULES

  • AIC = $500
  • Authorizes nationwide service of process
  • Venue is proper anywhere claimant resides
  • Subject Matter Jurisdiction is based off minimal diversity
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19
Q

Joinder of Claims

A

Diversity: Plaintiff can aggregate all claims against the same defendant to exceed AIC

Federal Question: If diversity is lacking for additional state-law claims, additional state-law claims can be joined if they are covered by supplemental jurisdiction.

20
Q

Compulsory Counterclaim

A

Compulsory Counterclaim: A counterclaim that arises out of the same transaction occurrence as the claim which it responds to.

Compulsory Counterclaims are lost if not pleaded in the current action.

  • Supplemental Jurisdiction will usually be available for compulsory counterclaims [using state law claims in a federal question subject matter jurisdiction, for instance]
  • Diversity AIC does not apply to compulsory counterclaims
  • Statute of Limitations is tolled for the original claims and compulsory counterclaim when filed [so if filed timely, compulsory counterclaim will be timely]
21
Q

Permissive Counterclaims

A

May be pleaded immediately or at a later time. Everything not a compulsory counterclaim

Rules

  1. Require an independent jurisdictional basis [and meed subject matter requirements]
  2. Statute of Limitations apply
22
Q

Cross Claims

A

A cross claim is asserted against a co-party.

  • Must arise out of the same transaction/occurrence
  • Cross-claims are never compulsory
23
Q

Impleader

A

Impleader: A device by which the defendant brings into the suit someone who is or may be liable to the defendant for all or part of the plaintiff’s claim against him.

Commonly Seen

  • Contribution between multiple tortfeasors
  • Indemnification contracts

Subject Matter Jurisdiction

Diversity

Impleader comes under court’s supplemental jurisdiction

  • Citizenship of third-party defendant does not matter
  • AIC of 3rd party defendant does not matter
  • Only extends to claims by the defendant against the 3rd party defendant

Rule: Plaintiff cannot make claim against the 3rd party defendant unless complete diversity is satisfied (or federal question satisfied)

24
Q

Class Actions Requirements

A

Prerequisites for a Class Action

  1. Numerousness;
  2. Common questions of law or fact;
  3. Typicality of claims by the class representatives; AND
  4. Adequacy of representation
  • Requires judicial approval
  • Named representatives must be completely diverse from the defendants AND at least one plaintiff has a claim worth more than $75,000

Minimal Diversity Applies for Class actions with at least 100 members and more than $5 million at stake

25
Q

Discovery

A

Generally, the scope of discovery is to relevant evidence. The scope is NOT limited to admissible evidence.

Courts determine what is proportional limits of discovery depending on size of case, benefit v burden, etc.

Exceptions

  • Evidentiary Privilege
  • Work-Product Doctrine

At Trial

  • Just because something is discoverable does not make is admissible

Enforcement Sanctions

Court may impose sanctions for:

  • Failure to attend one’s own deposition
  • Failure to respond to an interrogatory
  • Failure to response to request for documents or things
26
Q

The Six Discovery Devices

A
  1. Oral Deposition
  2. Written Deposition
  3. Interrogatories
  4. Discovery and Inspection of Documents and Land
  5. Physical and Mental Examinations
  6. Request for Admission
27
Q

Oral Deposition (Device of Discovery)

A
  • Limited to 10 oral depositions unless court grants more
  • Each deposition cannot last more than 7 hours
  • Any kind of notice suffices for the deposition of a depose, but a non-party requires a subpoena
28
Q

Written Deposition (Discovery Device)

A

Questions are written down and delivered to Officer who asks the questions orally and witnessed answers orally under oath.

[Rarely used]

29
Q

Interrogatories

A

Questions asked in writing and answered in writing.

  • May only be used against a party
  • Presumptively 25 is the limit, unless granted more by court
  • Responses required within 30 day
30
Q

Discovery and Inspection of Documents and Land (Discovery Device)

A

Called a “request to produce and permit inspection”

  • Applies to only documents, things, or land in control by opposing party
  • The thing to be produced must be described particularly
  • Response due in 30 days
31
Q

Physical and Mental Examinations (Discovery Device)

A

Available only against a party member

  • Only permitted when a party’s physical or mental condition is in controversy
  • Good cause must be shown
32
Q

Request for Admission (Discovery Device)

A

Used to streamline litigation

  • Failure to respond in 30 days is an admission
33
Q

Pretrial Conference Requirements

A
  • Must be attended by attorneys who will conduct the trial
  • Must file a pretrial statement containing claims, defenses, itemization of damages, requests, list of witnesses, etc.
  • Failure to comply usually means that the attorney pays the costs of the other side’s attorney’s fees
34
Q

5 Devices to Terminate Action Without Trial

A
  1. Judgment on the Pleadings
  2. Default Judgment (Opponent Does not Show up)
  3. Voluntary Dismissal (Without Prejudice)
  4. Involuntary Dismissal (With Prejudice)
  5. Summary Judgment

Summary Judgment

Compare with the motion to dismiss for failure to state a claim upon which relief can be granted (Rule 12(b)(6))

  • Can be used for law and fact
  • Partial summary judgment can be granted

Standard: There is no genuine dispute as to any material facts and the moving party is entitle to judgment as a matter of law

35
Q

Right to Jury Trial

A

7th Amendment has distinction between law (juries) and equity (no juries).

Equity issues (seeking injunctions, for ex.) DO NOT require trial by jury. Includes issues of Admiralty.

  • The demand for a jury trial can be made by either party in a complaint or separate motion.
  • Must be made no later than 14 days after service. [Usually made in complaint or the answer]
36
Q

Jury Instructions

A

Parties may request specific jury instructions.

  • Court must provide an opportunity to object to the proposed instructions.
  • Objections must be preserved on the record and before jury retires for deliberation
  • Only timely objections on the record can be appealed
37
Q

Motion for Judgment as a Matter of Law

A

[Formerly called a Motion for Direct Verdict]

Essentially a motion for summary judgment, but after the trial has started.

Standard: Viewing the evidence in light most favorable to the non-moving party, the evidence cannot support a verdict for that party, and the moving party is therefore entitled to judgment as a matter of law.

Renewed Motion for Judgment as a Matter of Law

If initial motion was denied, a renewed motion may be made after the jury returns the verdict

38
Q

Motion for New Trial

A

[Usually made with Renewed Motion for Judgment as a Matter of Law]

New trial may be granted at the discretion of the court. Factors include

  • Legal errors
  • Newly discovered evidence
  • Prejudicial conduct by lawyer, party, or juror
39
Q

Remittitur

A

If the court determines that a verdict was seriously excessive, then it may offer a remittitur to reduce the verdict and grant a new trial on the condition that the remittitur is not accepted.

40
Q

Final Judgment Rule

A

An appeal is only available after a final judgment has been rendered.

Partial Final Judgment

A judge may enter a final judgment on some claims by expressly designating them as final.

41
Q

Interlocutory Orders

A

Interlocutory orders are immediately appealable as of right

  • Injunctions Granted or Modified
  • Changed to Possession of Property

Discretionary Interlocutory Orders

Issues involving a controlling question of law with substantial ground for difference of opinion AND the immediate appeal may materially advance termination of litigation.

Appealable by leave of court.

42
Q

Writ of Mandamus

A

Provides for immediate appellate review of an order that is an abuse of authority.

43
Q

Standards of Review for Appeals

A
  1. Questions of Law
    1. Appellate review is de novo
  2. Findings of Fact
    1. Appellate review is clearly erroneous
  3. Matters of Discretion
    1. Appellate review is abuse of discretion
44
Q

Preclusion Types

A
  1. Claim Preclusion (Res Judicata)
  2. Issue Preclusion (Collateral Estoppel)

Analysis:

  1. Is the claim of this second suit precluded by a prior adjudication? If yes, stop inquiry.
  2. In not, are there any issues in the second suit that are precluded by the prior adjudication?
45
Q

Claim Preclusion (Res Judicata)

A

Rule: A final judgment on the merits of a claim bars re-litigation of that claim by the same parties or those in privity with the parties.

  • Precludes re-litigation of every claim that was raised or should have been raised in the fist suit.

Requirements

  1. There must have been a final judgment in the first suit
  2. The second suit must be between the same parties AND
  3. The second suit must involve the same claim or cause of action
46
Q

Issue Preclusion (Collateral Estoppel)

A

Requirements

  1. The same issue of fact must arise in the two suits
  2. That issue must have been actually and necessarily decided in the first suit AND
  3. The party to be precluded must have been a party to the first suit

Civil Procedure (4 decks)

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