FRCP Flashcards
2 ways a defendant can lose a fragile defense
by answering without including the defense in the answer, or by moving under Rule 12 without raising in that motion a fragile defense that had not been previously pled
Waiver Rule
a defendant must include the fragile defense in its first response to the complaint, whether that be a motion or an answer. if defendant thereafter makes a Rule 12 motion without including the fragile defense, it will be waived even if it had been included in the answer.
Rule 23(a)–Prerequisites
- numerosity
- commonality
- fair and adequate representation of the interests of the class
- claims and defenses of the reps match those of the class
Rule 38
Right to trial by jury is preserved to the parties inviolate
Rule 7
Pleadings and Motions
3 Basic Types of Pleadings
claims, answers, and replies
Rule 8
Contents of Claim: “a short and plain statement”; must show a claim to relief and what relief you want
Rule 8(a)(2)
a complaint must contain enough facts to make the claim plausible on its face and not merely speculative
Rule 9(b)
fraud must be alleged with specificity; all other mental states can be alleged generally
Rule 10
how pleadings should be formatted; check LROC
Rule 11
Sanctions: don’t waste the court’s time or lie
Rule 12
Defenses and Objections; when and how presented
Rule 12(a)(1)
default deadline for a responsive pleading is 21 days (60 days)
Rule 12(a)(4)
a “motion for this rule” extends the time for a responsive pleading
Rule 12(b)
big motions; provides a temporary alternative to filing an answer; can stop a case before it really starts by a motions to dismiss
Rule 12(b)
big motions; must be filed BEFORE an answer; can stop a case before it really starts by a motions to dismiss;
Rule 12(b)(1)
lack of subject matter jurisdiction
Rule 12(b)(2)
lack of personal jurisdiction
Rule 12(b)(3)
improper venue
Rule 12(b)(4)
insufficient process
Rule 12(b)(5)
insufficient service of process
Rule 12(b)(6)
**failure to state a claim for relief
Rule 12(b)(7)
failure to join a party under Rule 19
Rule 12(c)
Motion for Judgment on the Pleadings; must be filed after an answer; costly, can be dangerous
Rule 12(e)
Motion for a More Definite Statement: asking for clarification on an unintelligible claim
Rule 12(f)
Motion to Strike: swiss army knife to get rid of things that aren’t claims
Rules 12(g) and 12(h)
complex waiver rules
Rule 12(g)
if you want to make more than 1 12(b) motion, do it at the same time
Rule 12(h)(2)
can still file a 12(c) motion for defense for failure to state a claim, failure to join a rule 19 party, or affirmative defense
Rule 12(h)(3)
defense for lack of subject matter jurisdiction can be asserted
Rule 12(h)(1)(A)
not only are further 12(b)(2)-(5) motions disallowed, defenses asserted via those motions are waived
Rule 12(h)(1)(B)
defenses can be waived even if you don’t file a different rule 12 motion first; affirmative defenses governed by 15(a) and (b)
Rule 15
amending pleadings; can amend during and after trial (keep everyone on the same page)
Rule 55(a)
when a party 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, the clerk must enter the party’s default
Rule 18(a)
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
Rule 21
Misjoinder of parties is not a ground for dismissing an action
Declaratory Judgment
requires no action by either party
Injunction
requires action from one of the parties; a command; requires irreparable harm and inadequacy of legal remedies
Inadequacy
legal remedies must be inadequate
Override
determination of an equitable claim cannot take away the right to a jury trial of a legal claim
What is the SJ movant’s burden of production when it wouldn’t have had the initial burden of production at trial? (assume a defendant)
No Burden
OR
Heavy Burden
