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CP > Exam Prep: Pleading and JMOL > Flashcards

Exam Prep: Pleading and JMOL Flashcards

1
Q

What is a 12b6 motion to dismiss?

A

Failure to state a claim

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2
Q

When can party raise a failure to state a claim motion?

A

Any time up to trial.

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3
Q

for what reasons will a judge will grant a 12b6 motion?

A

If it was procedurally or legally inadequate

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4
Q

What did Conley require of pleadings?

A

Notice pleading

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5
Q

What does Twombly Iqbal analysis require?

A

Cut out conclusory allegations or formulaic recitations of elements and use remaining allegations to determine if claim is plausible

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6
Q

How am I going to approach twombly iqbal?

A

mention there could be a problem with:

formulaic recitations of the elements

legal conclusions emerging from formulaic recitation of elements

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7
Q

What are some non Iqbal problems to look out for in pleading?

A

If it just lists the elements, without the facts, then that’s a problem.

You don’t have to completely support the conclusion you come to.

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8
Q

When is summary judgement appropriate

A

When there is no genuine dispute as to any material fact

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9
Q

What kinds of motions can support summary judgement

A

a disproof of elements motion or an absence of proof motion

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10
Q

What record does summary judgement focus on?

A

The record from discovery

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11
Q

When must motion for summary judgement be filed?

A

Any time before 30 days after close of all discovery

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12
Q

Who can court grant summary judgement to?

A

Anybody and can also do it sua sponte

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13
Q

How can plaintiff seek summary judgement?

A

Based on proof of the elements motion

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14
Q

When do you file a 12b6 motion?

A

During pleading.

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15
Q

What does Iqbal say?

A

plaintiff must state a claim for relief plausible on its face

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16
Q

What rules address judgement as a matter of law?

A

12b6 failure to state a claim; R56 summary judgement; R50 JMOL

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17
Q

When can R50 apply?

A

Jury trials.

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18
Q

What does R50 focus on?

A

Evidence presented at trial

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19
Q

When can 50a be filed?

A

After a party has been fully heard on an issue (for P, after their evidence; for D, after all evidence)

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20
Q

Test to grant a 50a

A

Would reasonable jury have sufficient evidentiary basis to find for the party?

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21
Q

When is 50A decided?

A

Prior to submission to jury

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22
Q

What should party do if 50a denied?

A

Renew motion with a 50b motion after an unfavorable verdict. Must file a 50 a to file a 50 b to avoid 7th amendment problems in taking trial away from a jury.

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23
Q

Why do judges avoid granting a 50a to grant a 50b?

A

They hope jury will do the right thing and find consitently with what they would do. This saves time and money because if an appelate judge disagrees with trial court, they can reinstate the jury verdict.

24
Q

What happens when an appelate judge disagrees with rule 50b ruling at trial?

A

They can reinstate the jury verdict.

25
Q

What happens if 50a is granted?

A

The case never goes before a jury.

26
Q

What happens if 50a is reversed on appeal?

A

There may be a complete retrial to put it before a jury.

27
Q

What happens if both 50a and 50b are not granted?

A

party can request a new trial under 50b which links to 59.

28
Q

What is the standard for a R59 motion?

A

for any reason which a new trial has been granted before

29
Q

What reasons have the courts interpreted the R59 motion standard to grant a new trial for?

A

against the weight of the evidence, excessive damages (remitur), and process errors

30
Q

When must you file a 12b2-12b5 motion?

A

In the first responsive pleading.

31
Q

What happens if you don’t file a 12b2-5 motion in the first pleading

A

You waive the right to those motions

32
Q

What happens to a 12b6 motion if it addresses matters outside of the pleading?

A

It becomes a R56 motion for summary judgement

33
Q

What is common law equivalent of 50a?

A

directed verdict

34
Q

What is common law equivalent of 50b?

A

JNOV

35
Q

What motions/burdens can win summary judgement?

A

Burden of proof and absence of proof (formerly burden of disproof)

36
Q

How must the party moving for summary judgement fufill their burden of proof?

A

Burden of proof =
Burden of production must find and present evidence for each element of a claim

37
Q

How does a nonmoving party defeat summary judgement?

A

Prove absence of proof by demonstrating other party cannot produce evidence that proves an element of their claim

38
Q

What are rule 8 requirements of pleading?

A

Must state SMJ, claim for relief and demand for relief.

39
Q

Under rule 11, what does an attorney represent when they file a complaint?

A

No improper purpose

Warranted by existing law

Allegations have evidentiary support

Any denials of factual allegations are warranted

40
Q

What does Rule 11 allow for if an attorney makes bad faith filing?

A

Sanctions

41
Q

What rule address default judgement?

A

Rule 55

42
Q

What is 12b1

A

SMj - filed anytime, even on appeal

43
Q

What is 12b2

A

PJ - filed at pleading

44
Q

What is 12b3

A

improper venue - filed at pleading

45
Q

What is 12 b4

A

insufficient process - filed at pleading

46
Q

what is 12b5

A

insufficient service of process - filed at pleading

47
Q

what is 12b6

A

failure to state a claim - any time until end of trial

48
Q

What is required of an answer under rule 8?

A

Response: Admissions, denials and lack enough of information to respond, and affirmative defenses

49
Q

What rule governs answer requirements?

A

8

50
Q

What rule governs amendments?

A

15

51
Q

When can an amendment be granted?

A

When justice so requires. As long as it arises STOO, timing will relate back to when the suit was originally filed.

52
Q

What amendments are barred?

A

bad faith or prejudicial to the other party

53
Q

What is rule 61?

A

Harmless error

54
Q

What does rule 61 Harmless error address?

A

Unless justice requires it, the court will not disturb a verdict, grant new trial etc if it did not affect a partys substantial rights.

55
Q

When does an amendment apply in the eyes of the courts process?

A

As long as it arises STOO, timing will relate back to when the suit was originally filed.

56
Q

What is the standard t ogrant a R59 motion for a nre trial

A

Against the great weight of evidence.

57
Q

When can a court weigh evidence in SJ, JMOL, or R59?

A

Only for R59

CP (23 decks)

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