Jurisdiction - Well-plead Complaints Flashcards
1
Q
What rule is triggered when we do nothing/get a default judgment?
A
FRCP 55
2
Q
What rule covers motions to dismiss?
A
FRCP 12(b) 1-6
3
Q
§1391(c)
A
If such business entity, any jurisdiction where the court would have personal jurisdiction
4
Q
Failure to respond by a defendant is an ____________ of facts.
A
admission
5
Q
Civil form 3 is a __________ _____.
A
summons form
6
Q
Due process is ___________:
A
notice and an opportunity to respond!
7
Q
The legal effect of a default judgment:
A
judgment is entered based on the merits of the case and ENDS the case there
8
Q
When do we file a motion for a default judgment? What do we need?
A
The court to get involved and determine 1) proper service and 2) personal jurisdiction [plaintiff ought to plead this in the complaint]
9
Q
Before entering a judgment, the court must determine:
A
1) scope of nature of the injunction/remedy/relief
2) review affidavits certifying that facts and documents are true and correct
10
Q
Rule 54(c)
A
Rule 54(c) does tie a default judgment to the complaint, but ONLY by using the amount or kind of relief set out in the complaint as a ceiling - for due process purposes
11
Q
Motions to strike will strike ONLY:
A
a pleading
12
Q
Punitive damages belong in a prayer for relief and are NOT __ _______ ____ ___________.
A
a cause of action
13
Q
Rule for Rule 12 motions:
A
You can only bring 1 Rule 12 motion in a responsive pleading IF one is required UNLESS there is information that was not available to you
14
Q
Rule 12(b) Motions listed: (7)
A
- lack of SMJ
- lack of PJ
- improper venue
- insuff. process
- insuff. service of proc.
- failure to state a claim for relief
-the above brought by motion - failure to join under Rule 19*
15
Q
Most of the time, the court will halt the adjudication process IF:
A
IF a 12(b) motion is pending (filed by the defendant BEFORE the answer/pleading) IF a responsive pleading is allowed
16
Q
Rule 12(g)(1) motion:
A
right to join; a motion under this rule may be joined
17
Q
Rule 12(h)(2) or (3) - limitation in further motions
A
a party that makes a motion under this rule must not raise another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motions
18
Q
12(c) is the only motion that cannot be joined before pleading/after a complaint has been filed because:
A
judgment on the pleadings
19
Q
A plaintiff is not required to respond to an affirmative defense UNLESS
A
the court orders them to
20
Q
Rule 26(b)(1)
A
scope of discovery: any non-privileged matter that is relevant to any party’s claim or defense
21
Q
Scope of discovery
A
the issues the parties raise, their pleadings, and their defenses
22
Q
Rule 34
A
request for documents within discovery
23
Q
The court may restrict discovery because:
A
- it is too burdensome (or costly)
- the request is unlikely to provide useful information
- the request concerns a matter that has been fully explored
24
Q
What is a “motion”?
A
an application made to a court or a judge for the purpose of obtaining a rule OR order directing some act to be done ion favor of the applicant
25
Rule 12(g)(2)
forbids the moving party from making another motion under Rule 12 based on a defense OR an objection that was available when they filed their pre-answer motion
26
Rule 12(h)(1)(A)
omitting it from a motion in the circumstances described in Rule 12(g)(2)
27
Rule 12(h)(1)b
failing to EITHER:
i) make it by motion under this rule OR
ii) include it in a responsive pleading OR in an amendment allowed by Rule 15(a)(1) as a matter of course
28
Rule 12(h)(2):
failure to join under Rule 19(b) (joinder), MAY BE RAISED:
a) in any pleading allowed OR ordered under Rule 7(a)
b) by a motion under Rule12(c) OR
c) at trial
29
Rule 12(h)(3)
lack of SMJ which may be raised at any point prior to judgment
30
the "omnibus" motion rule applies when?
to Rule 12 defenses that are available to the party when it files the pre-answer motion
31
Rule 12(a)(4)(A) states:
defendant must file an answer w/in 14 days after notice of the courts action on the motion
32
Rule 12(f) permits the court to:
strike any insufficient defenses OR any redundant, immaterial, impertinent, or scandalous matter
33
Why are motions to strike generally disfavored?
because of their potential to delay proceedings
34
Rule 8(a):
a "short and plain statement" for the basis of their complaint/aff defense
35
The three-part test for the sufficiency of an affirmative defense:
1. is the matter appropriately pled as an aff def. or is it just a denial? IF YES,
2. is the A.D. well-pled under Rules 8 and 9
3. sufficiency of the defense is under a standard identical to 12(b)(6)
36
Rule 9(b) requires that the aff defense or complaint be:
pled with particularity
37
Rule 8(b)(3) permits:
general denial to a complaint in federal court when a party intends in good faith to deny all allegations of a pleading; admit to things like correct names and jurisdiction when appropriate
38
Rule 8(b)(1)(A): in a pleading a party must
must state in short and plain terms its defenses to each claim asserted against it
39
Ingraham v. United States 1987: effect of failing to plead aff def?
the affirmative defense is waived - in TX there was a $500k cap that they failed to raise by giving notice to the plaintiff (until appeal)
40
If a motion to strike is granted, what ought the defendant request of the court?
Motion to amend the answer
41
accounting defined:
an equitable remedy to figure out records of accounts (UNLESS it is a car accident?)
42
Does rule 8(c) contain an exhaustive list of AFF DEFs?
No
43
How do we determine a defense is an affirmative defense?
(1) whether the matter at issue fairly may be said to constitute a necessary or extrinsic element in the plaintiff’s cause of action;
(2) which party, if either, has better access to relevant evidence; and
(3) policy considerations: should the matter be indulged or disfavored
44
We have three options to address facts in an answer:
1. admit
2. deny
3. restate the fact
45
Rule 8(b)(6) - the effect of denial:
an allegation is admitted if not denied; OR it is neither admitted or denied IF a responsive pleading is not required, THEN the allegation is considered denied or avoided.
46
The filing of a complaint does what?
triggers the commencement of a lawsuit
47
State Farm Mutual v. Riley (2001)
-self-contained answer
-lacking knowledge or info - Rule 8(b)(5)
-respond to all allegations in the complaint
-denial must fairly respond to the substance of the allegation
48
What is the intent of the qualified immunity defense, as in Iqbal?
to address the concern that litigation could deter or distract public officials from carrying out their public duties
49
What is the Twombly rule? (interpretation of Rule 8)
a complaint states a claim ONLY IF it includes sufficient facts to make the claim plausible
50
Rule 11 "presenting" certifies that
the presenter believes, after conducting reasonable inquiry that the paper has 1) evidentiary support 2) a legal basis & 3) a proper purpose
51
sua sponte means:
"on its own initiative" not in response to a motion by a party
52
Rule 11 requirements:
to the best of the person's KNOWLEGDE, information, or BELIEF, formed after an inquiry REASONABLE under the circumstances
-MUST be made as a separate motion - cannot be joined
53
Rule 11 claims can be warranted under:
1. existing law OR
2. by a nonfrivolous argument for extending, modifying, or reversing the law
+ factual contentions that have evidentiary support
54
Hays v. Sony Corp. of America:
Reasonable inquiries that should have been raised: should have sent a letter to Sony asking if they made any money, gathered info from his clients concerning publishers that they had reached out to, and reached out to the school to inquire about the copyright
Referral/affiliation: to an attorney who was an expert in copyright law/ or do extra research
Standard: OBJ reasonable standard
55
If, as an attorney, you lack KNOWLEDGE on a topic, you have a duty to:
AFFILIATE with an attorney who does
56
Rule 11 attaches when?
it first attaches when the attorney SIGNS a document that they are filing with the court - but it is a continuing obligation
57
Rule 11 candor responsibility applies to two things:
1. candor of the facts
2. candor of the law or conflicting laws and the argument for application or overturn
58
In Hunter v. Earthgrains, what standard of review did the appellate court apply to the lower court's order?
(ISSUE) abuse of discretion
59
abuse of discretion elements:
(Ex. an ERROR OF LAW) Given the facts and circumstances, no reasonable judge could have found the same holding
60
Proper purpose: where the courts split
1. whether an Atty's subjective intent in filing was relevant (they intend to pursue the motion) to determining "proper purpose"
2. a non-frivolous pleading that did show harassment is improper under Rule 11
61
What is the court's inherent power under rule 11?
1. court may act sua sponte - no safe harbor, but due process still applies
2. court must order the offender "to show cause why conduct specifically described in the order has not violated Rule 11(b) - akin to "contempt of court"
62
Appropriate solutions for sanctions:
sanctions can be monetary or nonmonetary, and the sanction must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated
63
In amending before trial, an amendment may be made as a matter of course IF:
Rule 15(a)(1): may amend no later than 21 days after serving (1) a responsive pleading or (2) a motion under 12(b), (e), or (f)
64
12(e) motion is:
a motion for a more definite statement
65
12(f) motion is:
a motion to strike/ can act like a 12(b) on .... (1:15)
66
Rule 15(a)(1) motions:
address amendments "as of right," amendments a pleader may make without the court's permission - once as a matter of course
67
Rule 15(a)(2) motion:
(once 21 days has passed) address all other motions that require the court's permission or "leave"
68
A party may have up to __ days to respond as a matter of right.
42; 21 pre-answer days + 21 post-answer days
69
The Foman Rule:
the court weighs the reason for the amendment (Rule 7), the party's diligence, and any prejudice that may be incurred
70
Beeck v. Aquaslide "n" Dive Corp. facts:
-Def needed leave of court to amend its answer because they were well past the Rule 15 allotted 21 days
-Def denied designing and manufacturing the slide, now they have to prove it where the Plaintiffs refuse to amend
-Def admitted in answer and interrogatories field before statute of limitations ran (to find out WHO made the slide)
-Pres. of Aqua asked by plaintiff to visit accident site 6 mo. after SOL ran
71
Considerations in Granting Rule 15(a) Motion:
undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by amend. previously allowed, undue prejudice to (opposing party, in prepping to defend, & in collecting & presenting evidence), and futility
72
Futility (barred):
analyzed motion to amend as if a Rule 12(b)(6) motion had been filed burden on opposing party to show undue prejudice
73
What is bifurcation?
separating damages and liability
74
Rule 15(b)(1) - amendments during and after trial:
based on an objection at trial; a party objects that the evidence is not within the issues raised in pleadings; courts should permit an amendment when doing so will aid in presenting merits and there would be no prejudice
75
What may a court do under 15(b)(1) to permit amending?
grant a continuance
76
Rule 15(b)(2) : for issues tried by consent
IF not express or implied consent by the parties THEN the issue must be treated in all respects as if raised in pleadings
77
General 15(b)(2) rule:
Leave should be granted if there is 1) no preparation prejudice OR 2) IF a continuance would allow sufficient time to prepare
78
Has the statute of limitations expired?
Those facts trigger a 15(c) analysis
79
Rule 15(c)(1)(A):
the amendment relates when the law provides the applicable statute of limits and allows relation back; we will look to substantive law/statute of the jurisdiction or COL (jurisdiction) clause
80
Rule 15(c)(1)(B):
IF they knew of the complaint AND IF a party wishes to amend their complaint to add a new claim THEN it must be based on the same transaction or occurrence that relate back to the original filing
81
Rule 15(c)(1)(C) relating back:
a PARTY may be added IF the party arises from the same set of facts (15(c)(1)(B)) AND IF the added party received notice that will not be prejudiced under Rule 4(m) [90 days] AND IF the party knew or should've known an action would be brought against it, BUT FOR mistaken identity
82
Question asked under rule 15b2?
whether the claim is outside of pleading; does the evidence prove or disprove the cause of action? if it does, there is no implied consent
83
Why do we object?
to preserve an issue for appeal
84
What was the remedy in Hardin?
a completely new trial because of how messy the issues became; the court "may"
85
Rule of Law for Abuse of Discretion:
Unless no reasonable judge could have ruled in a way that the trial court ruled (clear error)
86
A "transaction or occurrence" is defined by what four factors?
time, space, origin, & motivation
87
Rule 18(a) CLAIMS:
a party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent OR alt claims, as many claims as it has against an opposing party
88
Rule 20(a)(1) PARTIES:
(1) PLAINTIFFS (also in relating back) persons may join in one action as a plaintiff IF:
89
20(a)(1)(A)
ACTIVE: (looking at historical facts) They assert any right to relief, jointly, severally, or in an alternative with respect to OR arising out of the same transaction or series
90
20(a)(1)(B)
any question of law or fact common to all plaintiffs will arise in that action
91
Rule 20(a)(2)(A): Defendants
(PASSIVE) becomes fair to the defendant when they can bring counterclaims
92
Historical facts can be found where in the complaint?
in the body of the complaint (must satisfy Iqbal Twombly)
93
"Series of Transaction" language can indicate:
a. pattern of behavior or an implicit policy
94
If parties can be joined under 18 and 20 and the court has SMJ, does the court have
95
Rule 11:
also applies to good faith reason for joinder
96
Rule 13(a)(1): compulsory counterclaim
must state as a counter, any claim at the time OF ITS SERVICE:
(A) arises out of the transaction OR occurrence that the SM of the op's claim
(B) does not require adding another party over whom the court cannot acquire jurisdiction (they have right to be heard and notice)
97
When does a claim arise out of the same transaction or occurrence?
Are the issues of fact and law raised in the claim and the counterclaim largely the same?
Would res judicata bar a subsequent suit on the party’s counterclaim, absent the compulsory counterclaim rule?
Will substantially the same evidence support or refute the claim as well as the counterclaim?
Is there a logical relationship between the claim and the counterclaim?
98
Rule 13(a)(2) Exceptions:
pleader need not state the claim IF:
(A) when action was commenced the claim was the subject of another pleading
(B) the opposing party sued on its claim by attachment OR other process did not est. personal jurisdiction over the pleader of that claim, AND the pleader does not assert any counterclaim under this rule
99
If an exception for A or B applies, the pleader does not bring a counterclaim UNLESS
pleader brings a counterclaim that isn't in one of
100
Rule 13(b): permissive counterclaim
a pleading may state as a counterclaim against an opposing party any compulsory claim
101
28 U.S.C. 1367 (a)
(maybe compulsory only) If a federal court has SMJ over the case, it may also hear other claims in the action that 1) arise out of the same nucleus of operative facts 2) would be expected to try in one proceeding, and 3) substantial federal issue
102
What makes a counterclaim PERMISSIVE?
it does not arise out of the same transaction or occurrence
103
Raise rule 19 with what motion?
Rule 12(b)(7) - failure to join under rule 19
104
Rule 19(a)(1)(B)(i) looks at whose interests?
examines the interests of the existing party and their substantial risks of incurring obligations inconsistent with their interests
105
Rule 19(a)(1)(B)(ii) looks at whose interests?
examines the interests of the existing party
106
(permissive) Rule 24: Intervention
(a) as of right
(b) permissive
107
Rule 24(a)(1)
given an unconditional right to intervene by a fed statute OR
108
Rule 24(a)(2)
claims an interest relating 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 interests UNLESS existing parties adequately represent that interest
109
Rule 24(b)(1)
a court may permit anyone to intervene who:
(A) is given a conditional right to intervene by federal statute OR
(B) has a claim or defense that shares w/ main action a common question of law or fact
110
Rule 24(b)(3)
Delay or Prejudice; in exercising discretion, the court must consider whether the investigation will unduly delay or prejudice the adjudication of the original parties' rights
111
Rule 22(a)(1): Rule for Interpleader
Persons w/ claims that may expose a plaintiff to a double or multiple liability may be joined as DEFs and required to interplead when:
(A) claims of several claimants, or titles, lack common origin or are adverse and independent rather than identical
(B) PL denies liability in whole or in part to any or all of the claimants
112
What is an interpleader?
Used by a person faced with conflicting claims to property; allows the person holding the property to join all claimants in a single action to obtain ONE judgment to resolve all the claims
113
28 USC 1335(a)
(1) two or more adverse claimants and are citizens of different states are claiming or may claim to be entitled to the money or property
114
28 USC 1335(a)
(2) the plaintiff has deposited such money or property into the registry of court or given bond
115
When will a district court have pendent jurisdiction?
[doctrine of discretion]
1. a claim arises out of Article III Sect. 2 of the Constitution
2. AND the relationship between the Fed Law claim and state claim permits concluding that there is one constitutional "case" at hand
116
case defined:
a factual event
117
claim defined:
legal theory for recovery
118
119
120
121
122
Rule 26(b)(1)
parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense
123
CL definition of privilege:
IF a communication is made AND IF it is between privileged persons in confidence AND for the purposes of obtaining or providing legal assistance to the client THEN information is privileged
124
Rule 26(b)(3)(A):
The Work Product Doctrine:
Ordinarily, a plaintiff may not discover documents and tangible things that are prepared in anticipation of litigation OR for trial by or for another party OR their representative
125
WPD Exception: Rule 26(b)(3)
(i) they are otherwise discoverable under 26(b)(1) AND
(ii) party shows it has substantial need for the material to prepare its case & can't, w/out undue hardship, obtain their substantial equivalent by other means
126
Exception to the Exception: 26(b)(3)(B)
If the court orders discovery of otherwise work-product materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney
127
Common Nucleus Rules:
1. 20(a)(2) joinder of DEF
2. 13(a)(1)(A) compulsory counterclaim
3. 14(a)(3) - PL claim against 3rd party DEF
4. 15(c)(1)(B)
5. 24(a)(2) - intervention as of right
6. 19 - required parties
128
When should fed court decline jurisdiction?
fed claims dismissed before trial
state issues substantially predominate
jury confusion
129
Rule 11 Obligation:
lawyers must make reasonable (pre-filing) inquiries under the circumstances before signing and filing any pleading
130
"Reasonable" inquiry:
interview the client and maybe witnesses, visit the location of the accident, review documents, collect public information/police reports, do an internet search, etc.
131
How an attorney may obtain information open to the public in discovery:
1. Open records request (GA)
2. FOYA requests (federal)
3. Internet
132
Gaylord v. Homemakers of Montgomery, Inc.
Whether the worker's recorded statement should be introduced into evidence.
No, because of the Attorney's conduct.
Rule 4.2 Rules of Prof. Conduct: when a party is represented by counsel + attorney knows the party is represented
133
Re. 3d of Law Governing Lawyers the Restatement (3d) of the Law Governing Lawyers §§ 68, 70
(1) a communication
(2) made between privileged persons
(3) in confidence
(4) for the purpose of obtaining or providing legal assistance for the client....
134
Dissenting Justice on how an attorney ought to speak to an employee/ client of an opposition:
1. ID self to individual
2. Advise individual who you represent
3. Communicate in writing
135
Most jurisdictions only prohibit communication with ____________ employees.
managerial; not low-level employees or previous employees not bound
136
Scope of Discovery: Rule 26(b)(1)
[put together a discovery plan (assess costs/impacts on the bottom line]
1. may obtain discovery in any non-privileged matter that is relevant to any party's claim or defense and
2. proportional to the needs of the case
3. info in the scope need not be admissible in evidence to be discoverable
137
Factors considered in a proportionality analysis:
1. Matter - info regardless of the form in which it is stored (more than tangible things)
2. Non-privileged - made in confidence during the course of priv. relat., common law or statute, privilege must be invoked (someone must have declined + ID'd the info we want), privilege log, waived
3. Relevant to Any Party's Claim or Defense (limited to issues raised on 12(b) motion)
4. Propotional to the Need of the Case
138
Proportional to Needs of the Case:
1. Importance of issues at stake
2. amount in controversy
3. parties' relative access to the relevant info
4. parties resources
5. Importance of the discovery in resolving the issues
6. whether the burden or expense of the proposed discovery outweighs its likely benefits
139
The party seeking discovery has a duty to:
burden of balancing: non-privileged + relevant to the parties claim or defense
140
Party with the burden of the discovery:
proof of disproportionate needs
141
Importance of the Issues at Stake
philosophical and social issues to society as a whole
142
Amount in controversy:
cost of discovery compared to the amount in controversy
143
Information Asymmetry:
burden of responding lies heaviest with the party who has MORE information
144
Parties usually agree to "_____ ______" in e-discovery.
search terms - the court will examine the costs of producing those documents and the percentage of doc relevance to the claim (even when it is lower)
145
Attorney Client Privilege:
1. communication
2. for the purpose of obtaining legal advice
3. made between privileged persons
4. in confidence
146
Work Product Doctrine: Rule 26(b)(3)
work prepared in anticipation of litigation that the attorney does that is not discoverable
147
Rule 26(b)(4)
testifying experts: must disclose name and FINAL report
EXCEPT: relates to compensation, data provided by the attorney (once parties are substantially into discovery), ID assumptions that the party's attorney provided
148
Rule 26(b)(4)(D)
expert employed only for trial purposes - attorney may NOT discover facts or opinions held by experts [PROTECTED]
149
Rule 35(b)
150
Rule 26(a)
Required Disclosures - what you know at this point and time under Rule 11 after making reasonable inquiries
(1) witnesses
(2) description and location of all docs stored
(3) computation** of category of damages claimed
(4) insurance agreements that may satisfy all or part
151
Knowing the computation or insurance limitations ______ ____________.
drives settlements
152
26(a)(1)(B)
proceedings exempt from initial disclosures
153
26(a)(2)
disclosure of expert testifying witnesses and report (90 days)
154
26(a)(3)
disclosure of witnesses and evidence for trial at least 30 days pre-trial, w/in 14 days after disclosure must file objections
155
37(c)(1)
"if you don't disclose, you cannot use"
156
Discretionary Discovery
1. [Required disclosures]
2. Depose secondary witnesses
3. Issue follow-up requests for production and interrogatories
4. Depose key witnesses
5. Depose the adverse party
6. Issue follow-up requests to admit
7. Depose expert witnesses
8. Issue contention interrogatories
9. Issue final “clean up” discovery requests
157
What rules initiate discretionary discovery with an exchange of interrogatories?
26(g) and 33
158
Rule 35 Court Orders
Physical and Mental Examinations:
(1) condition must be the controversy in the litigation
(2) party seeking examination must est. good cause
