Final Exam - FRCP and Statutes Flashcards
Rule 1
Goals of FRCP: just, speedy, and inexpensive determination of every action and proceeding.
Rule 7
Pleadings Allowed; Form of Motions and Other Papers
Obviation of the formal common law writ system in favor of a broader complaint where a simple yes/no + reason for relief is tendered.
Rule 8(a)
General Rules of Pleading - Claim for Relief
Must include: jurisdiction, entitlement to relief, demand for relief.
Rule 8(b)
General Rules of Pleading - Defenses, Admissions, and Denials (the Answer)
Can include alternative pleading, affirmative defenses
Rule 9(b)
Pleading Special Matters - Fraud or mistake; conditions of mind
-In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, etc. may be alleged generally.
-Higher threshold than Rule 8
See Tellabs.
Rule 12
Defenses and Objections
12(a) - Answer Standards
12(b) - Alternatives to answering; threshold questions must be resolved before the litigation proceeds.
12(c) - Judgment on the pleadings
12(h) - Waiving and preserving certain defenses
Rule 12(b) Motions
(b) (1) - SMJ *can be raised at any time by anyone, including the Court
(b) (2) - PJdx
(b) (3) - improper venue
(b) (4) - insufficient process
(b) (5) - insufficient SOP
(b) (6) - failure to state a claim *matter of law, not facts
(b) (7) - failure to join a party under Rule 19
Rule 12 Disfavored Defenses
(b)(2)-(b)(5) –> procedural, curable defects
Are WAIVED if omitted from pretrial motion
Rule 12 Favored Defenses
(b) (1), (b)(6), (b)(7) –> all fatal to the Plaintiff, amendment will not work to cure the defects
(b) (1) can be raised at any point in the litigation
(b) (6) and (b)(7) can be raised in any pleading, on motion for judgment or at trial
Rule 3
Commencing an action - going to the clerk’s office and filing
Rule 4
Summons
Plaintiff must provide a summons to the clerk (Stamp it!), which is given back to the plaintiff for service on the defendant.
+Term of obligation
+Defendant can seek a waiver to have more time to answer under Rule 6
Rule 6
Computing and Extending Time; Time for Motion Papers
Under Rule 6(b), a party may be granted an extension to respond, on good cause, before the deadline, or after the deadline if there is excusable neglect.
Rule 55(a)
Default and Default Judgment
Entering a default - when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default
Rule 55(b)
Entering a Default Judgment
Done by the clerk or by the court (no need for judicial discretion)
Rule 55(c)
Setting Aside a Default or a Default Judgment
Judge may set aside a default judgment for good cause or final judgment under Rule 60(b) (“just terms”)
Rule 13(a)
Compulsory counterclaim
Pleading must state as a counterclaim any claim that, at the time of its service, the pleader has against an opposing party if the claim:
1) Arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim
2) Does not require adding another party over whom the court cannot acquire jdx
Rule 13(a) Exceptions
1) Claim is already subject to another pending action
2) Opposing party sued on its claim by attachment or other process that did not establish personal jdx over the pleader (plaintiff) on that claim, and the pleader does not assert any counterclaim under this rule –> TLDR, no personal jdx by defendant and not covered by plaintiff’s pjdx
Rule 13(b)
Permissive counterclaim
Anything that is not compulsory - random claims, not arising out of the same transaction or occurrence
Rule 13(g)
Crossclaim against a co-party
A crossclaim may be made by one party against a co-party (even on the same side of the v) if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action.
Crossclaim may (optional) include a claim that the co-party is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant (indemnification).
Rule 13(h)
Joining additional parties
May be done under Rule 19 (required joinder of parties) or 20 (permissive joinder of parties)
Rule 13(i)
Separate trials and judgments
The court may (judge-made decision) order separate trials under Rule 42 and may enter a judgment on a counterclaim or crossclaim under Rule 54(b) with proper jdx, even if the opposing party’s claims have been dismissed or otherwise resolved
Rule 10
Form of Pleadings
10(a) - Names of Parties
Every pleading must have a caption with the court’s name, a title, a file number, and a Rule 7(a) designation. All parties must be named.
10(b) - Paragraphs; Separate Statements
Must state in individually numbered paragraphs its claims or defenses, limited as far as practicable to a single set of circumstances.
Rule 20
Permissive Joinder of Parties
20(a) Persons Who May Join or Be Joined
1) As plaintiffs:
+They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence or series; and any question of law or fact common to all plaintiffs will arise in the action
2) As defendants:
+Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series, and any question of law or fact common to all defendants will arise in the action
Rule 19(a)
Required Joinder of Parties - Persons Required to be Joined if Feasible
1) A person who is subject to service of process and whose joinder will not deprive the court of subject matter jdx must (not optional) be joined as a party if:
+ In the person’s absence, the court cannot create complete relief among existing parties
+That person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:
a) Impair or impede that person’s ability to protect the interest
b) Leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest (inconsistent obligations = injunctive relief by two courts conflicting)
2) If a person has not been joined as required, the court must order the person be joined
Rule 19(a) - Non-Feasible Joinder
19(a)(3)(b) When Joinder is not Feasible
1) If a person who is required to be joined if feasible cannot be joined, the court must determine whether the action should proceed among the existing parties or should be dismissed. –> are they indispensable?
Rule 18
Joinder of Claims
A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.
DO NOT need to arise out of the same transaction or occurrence.
Rule 17
SI thinks this is a dumb rule and it only came up in VEPCO v. Westinghouse (First and last time we see it)
Plaintiff and Defendant; Capacity; Public Officers
Must be real parties in interests - seeks to protect third parties with an interest in the litigation, does away with the common law need for privity.
Rule 14
Impleader
A defending party may, by becoming the third-party plaintiff, serve a summon and complaint on a nonparty who is or may be liable to the third-party plaintiff for all or part of the claim against it.
Rule 14 Third Party Defendant Requirements
1) Assert defense against 3PP claims under Rule 12
2) Assert any counterclaim against the 3PP under Rule 13(a)
3) May assert a counterclaim under Rule 13(b) or against another 3PD under 13(g)
4) May assert any defense
5) May assert any claim under Rule 18 that arises out of the same t/o of the subject matter of the plaintiff’s claim against the 3PP (i.e., the original suit)
3PD may also implead others who may be liable to them for all or part of the claim.
Rule 14 Plaintiff Reqs against a Third Party Defendant
Plaintiff may assert against the 3PD any claim arising out of the t/o of the subject matter of the original claim against the 3PP (og defendant). The 3PD must then assert defenses under Rule 12, counterclaims under Rule 13, or crossclaims under Rule 13
Rule 24(a)
Intervention of Right
On a timely motion, the court must (clerk) permit anyone to intervene who:
1) Has a statutory right
2) Claims an interest relation to the property or transaction that is the subject of the action and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.
Rule 24(b)
Permissive Intervention
On timely motion, the court may (judge) permit anyone to intervene who:
1) Has a conditional statutory right
2) Claims or defense that shares with the main action a common question of law or fact (but they would not necessarily be impeded from protecting their interests)
28 U.S.C. § 1335
Statutory interpleader
1) minimal diversity
2) lower amount in controversy ($500)
Rule 22
Rule Interpleader
1) Need perfect diversity
2) Must meet SMJ amount in controversy reqs >75k
Rule 22
Rule interpleader
1) Perfect diversity
2) Amount in controversy >75k
Rule 22(a) - By a plaintiff
Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead; joinder is proper even if:
1) the claims of the several claimants or the title on which their claims depend lack a common origin or are adverse and independent rather than identical
2) the plaintiff denies liability in whole or in part to any or all of the claimants
Rule 22(b) - By a defendant
A defendant exposed to similar liability may seek interpleader under Rule 13
Rule 23(a)
Class Actions - Prereqs
- One or more members of a class may sue or be sued as representative parties on behalf of all members only if the following requirements are met:
1) Numerosity (joinder would be impractical)
2) Commonality (are there common questions and answers to the class?)
3) Typicality (is the representative typical of the claims or defenses of the class?)
4) Adequacy (will the rep adequately protect the interests of the other class members?)
Rule 23(b)(1)
Class Actions - Types of Classes (b)(1) class: prosecuting separate actions by or against individual class members would create inconsistent or varying adjudications between individuals, creating incompatible standards of conduct for the opposing party; would impair or impead nonparties from protecting their interests. INJUNCTIVE RELIEF. No opt out, no notice.
Rule 23(b)(2)
Class Actions - Types of Classes
(b)(2) - injunctive/declaratory class. No assertion of individual damages. Common course of conduct by the defendants applies to all class members.
There is the possibility that there can be classwide or subclass monetary damages, though this is not typical.
No entitlement to notice or opt-out, though the court may provide it.
Rule 23(b)(3)
Class Actions - Types of Classes (b)(3) - damages class. Questions or law or fact predominate over any individual questions of class members. Superior method for fairly and efficiently adjudicating the controversy. Entitlement to notice and opt-out under Rule 23(c)
Rule 23(b)(3) Interests
SUPERIORITY AND PREDOMINANCE, if you don’t remember anything else.
1) Individual interest in controlling their own litigation
2) Extent and nature of any litigation concerning the controversy already begun by or against class members
3) Concentrating the litigation of the claims in the particular forum
4) Manageability
Rule 26
Discovery - Initial Disclosures (mandatory)
Rule 30
Discovery - Depositions
Rule 33
Discovery - Roggs
Rule 34
Discovery - RFPs
Rule 36
Discovery - Requests for admissions (to define the boundaries of a trial)
Rule 37
Discovery - Sanctions
Rule 56
Motion for Summary Judgment (post-discovery, pre-trial)
A party may move for summary judgment by identifying the claim or defense on which SJ is sought. The court shall grant SJ if the movant shows that there is no genuine issue of fact –> entitling party to judgment as a matter of law.
Really only used by the D, even though it was originally a P tool.
28 U.S.C. § 1332
Diversity Jdx
1) Perfect diversity
2) Amount in controversy >75k
28 U.S.C. § 1332 Exceptions
1) Statutory interpleader only requires minimal diversity and lower amount in controversy
2) CAFA, aggregation. Minimal diversity and $5M+ in controversy of the totality of the claims
3) Amount in controversy cannot be met through counterclaims
4) Mass accidents/mass torts
28 U.S.C. § 1331
Federal question jdx/Mottley test
Civil actions arising under federal law/constitutional issues
+Holmes/American Well Works - express jdx
+Merrell Dow - implied right
+Grable/Gunn - federal ingredient
28 U.S.C. § 1367
Supplemental Jdx (a): allows federal courts that have federal question jdx over a claim to exercise jdx over all other transactionally related claims that are part of one constitutional case (Gibbs - common nucleus)
28 U.S.C. § 1367 Exceptions
if you are in federal court on diversity grounds, the court is not granted supp jdx to adjudicate the claims by the original plaintiff against parties they joined under Rules 14 (impleader), Rule 19 (required joinder), Rule 20 (permissive joinder) and Rule 24 (intervenor). DOES NOT mention plaintiffs joined under Rule 20 (by defendants) or Rule 23 (class actions).
A defendant can join parties who will destroy complete diversity
Rule 59
New Trial; Altering or Amending a Judgement
(a) (1): The court may, on motion, grant a new trial on all or some of the issues, and to any party, as follows:
- after jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court
- after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court
Rule 68
Offer of Judgement
Rule 11
Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions.
