Mid Term

Question 1

3 Situations when it makes difference if a counterclaim is COMPULSORY or PERMISSIVE ?

Answer 1

1) The court has no independent subject matter jurisdiction over the counterclaim
(it’s DIVERSITY not a federal question and there is no diversity);

2) the statute of limitations on the counterclaim has run;
3) D in first case (action) didn’t file a counterclaim and has now filed a claim in a separate suit against initial P.

Question 2

2 Reasons for the HEIGHTENED Pleading Standard for FRAUD in R9(b) ?

Answer 2

1. Providing Adequate NOTICE of what conduct is believed to be fraud
2. Protection of REPUTATION

~3. Defense of frivolous suits
~4 Defense of complicated transactions

Question 3

Who is Charles Clark and what did he do?

Answer 3

He’s the chief drafter of the Fed. Rules of Civ Pro.
He had a realist approach to Civ Pro and created a simplified pleading system centered around R.8(a)(2) so that a claim could provide notice of the general nature of the case and circumstances upon which is was based .

Question 4

When deciding a R.12(b)(6) motion, why does a federal judge assume the facts in the complaint to be true?

Answer 4

• To decide if P can PLAUSIBLY recover under any Theory.
• A complaint should be dismissed unless it appears beyond a doubt that Plaintiff can prove no set of facts in support of the claim which would entitle them to relief.

Question 5

Why does R.8(a)(1) require a plaintiff to state the basis for the federal court’s jurisdiction in the complaint ?

Answer 5

To ensure the complaint is brought in the proper forum
and
the court has the power to hear and decide the case.

Question 6

2 Underlying Policies for the Fed Rules of Civ Pro?

Answer 6

1. To secure a just, speedy and inexpensive determination of actions and proceedings
2. to ensure that people have their day in court to settle disputes

Question 7

Public Policy for conclusion

Answer 7

• Speedy and Inexpensive
• No Overlap of information
• Jury Confusion