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Crim Pro 1- Fall 2018 > Midterm Material > Flashcards

Midterm Material Flashcards

1
Q

Under rule 9(b) - Fraud or Mistake in pleadings, what may be alleged generally apart from heightened fact requirement?

A

Conditions of mind (malice, intent, knowledge)

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2
Q

The 3 requirements under Rule 8(a)(1-3) for a Complaint to state:

A
  1. Short and plain statement of grounds for jurisdiction;
  2. Short and Plain statement, SHOWING the pleader is entitled to relief; and
  3. Demand for relief sought
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3
Q

Test under Conley v. Gibson for sufficiency of the complaint?

A
  1. Get substantive law
  2. Assume all the facts are true in complaint
  3. apply “not set of facts” rule to see if complaint conceivable
    - —->if so, passes test !
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4
Q

Test under Twombly and Iqbal for sufficiency of a complaint?

A
  1. What is the substantive law?
  2. Remove all conclusory statements and allegations
  3. Do the remaining facts “plausibly” INFER a violation of the substantive law?
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5
Q

What is the definition of plausibility under Twombly and Iqbal test for survival of complaint after 12(b)(6) motion?

A

Judge should base plausibility on:

  • context specific
  • judicial experience
  • common sense
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6
Q

How many days after filing the complaint does the Plaintiff have to complete SERVICE ?
What is the exception?

A
  • 90 days from filing

- EXCEPTION = time limit does not apply to Foreign SERVICE

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7
Q

If SERVICE within U.S. Jurisdiction, what are the 4 main ways to properly complete SERVICE?

A

(1) Follow State Law rules in Jurisdiction
(2) Deliver personally
(3) leave copy with person of suitable age, resides at dwelling or usual place of abode
(4) Give to authorized agent by appointment or law to receive service

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8
Q

When can the court order Alternative Service method not outlined in the 4 proper Service methods?

A

Serving individual NOT inside a U.S. Judicial District (does not have to be actual foreign country)
-Court can order PRESCRIBED method even before other 4 are exhausted
see RIO v RII - service by Email

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9
Q

Under Rule 8, what must the Defendant do?

A

(answering the complaint)

-state in short and plain terms its defense to EACH claim asserted; admit or deny, or not enough info to form belief

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10
Q

Under Rule 8, what does failure to deny do?

A

constitutes an admission of the claim brought by the Plaintiff in complaint

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11
Q

In general, a party must state any ______defense in its Answer to the Complaint.

A

Affirmative

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12
Q

A party, Plaintiff or Defense, may set out 2 or more claims or defenses in the _____ regardless of _____

A

alternative

consistency

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13
Q

Under Rule 12(a) how long does the Defendant have to file a motion or answer to the complaint if they are properly served and did not waive service?

A

21 days AFTER proper service

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14
Q

If the Defendant waived proper Service, how long do they have to file an Answer with court within U.S. District versus outside?

A

within: 60 days AFTER request for waiver was SENT by PLAINTIFF

outside U.S. District = 90 days after waiver SENT to defendant

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15
Q

What is the effect of a Motion upon the timeline when filed by a Defendant prior to Answer?

A

Unless the court says otherwise, if denial of motion or postponing, ANSWER within:

  • 14 days of notice of courts action
  • 14 days after more definitive statement is served
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16
Q

True or False:

A plaintiff must file an answer to a counterclaim.

A

True - within 21 days after service of the pleading

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17
Q

True or False:

A defendant must file an answer to a cross-claim.

A

True- within 21 days after the service of the pleading

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18
Q

What are the first 4 Defenses under Rule 12(b) for Defendant?

A
  1. Lack subject-matter jurisdiction
  2. Lack of personal jurisdiction
  3. Improper Venue
  4. Insufficient Process
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19
Q

What are the last 3 Defenses under Rule 12(b) ?

A
  1. Insufficent SERVICE of process
  2. Failure to state a claim
  3. Failure to join a party
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20
Q

What other rule is the 12(b)(7) Defense referring to when claiming Failure to Join an Indispensable party?

A

Rule 19 - Required Party Joinder

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21
Q

What is Rule 12(c) and who can use it and when can they use it?

A

Either party can use it
= Motion for Judgment on Pleadings
-can be used after pleadings are closed

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22
Q

What is the content of Rule 12(g) concerning joining motions?

A
  • motions can be joined

- Limitation on further motions if was available but omitted from earlier motion

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23
Q

Under Rule 12(h), Defenses in 12(b) (2-5) are waived when omitted from ______ or _____.

A

First Motion
or
First Answer (if no first motion made)

24
Q

12(b)(6 and 7) can be preserved in an ANSWER if they were not in first motion, OR used in a ______ motion, OR at ______.

A

12(c) motion- summary judgm.
or
at Trial

25
Q

Under Rule 15, a party may _______ as ______ WITHIN 21 days after serving their pleading OR 21 days after responsive pleading, or 21 days after service of motion.

A

Amend

a matter of course

26
Q

If the “matter of course” is used up, the court must grant leave (or other party can give permission)__________________.

A

To amend “when justice so requires”

27
Q

Relation back under Rule 15(c) can only occur under what 2 ways? (excluding the error in naming a party reason)

A
  1. State SOL law allows it

2. Arose from same conduct, transaction, or occurrence

28
Q

Relation back under Rule 15(c) can occur when changing the naming of a party or party made in error only if what 2 things?

A
  1. correct party will not be prejudiced in defending; and

2. correct party knew, or should have known action would be brought but for mistake of identity

29
Q

Prejudice (as referenced in Rule 15 -relation back amendment in party name error) can be defined as:

A
  • measured by to what extent defendant is worse off that the amended complaint was not original complaint
  • difference between 2 = prejudice (delay in time and money)
30
Q

What 3 things must exist to permit joinder?

A
  1. Rule permits joinder
  2. Court has Personal Jurisdiction over D
  3. A Statute AND U.S. Constitution confer subject matter jurisdiciton
31
Q

What are two exceptions to the independent need for jurisdiction in claim joinder?

A
  1. Supplemental Jurisdiction

2. 1 claim meets criteria and all other claims joinded with it in CounterClaim or CrossClaim

32
Q

What rule allows unlimited number of claims to be joinded that a party might have against another?

A

Rule 18 - applies to claim, counterclaim, crossclaim, 3rd party claim

33
Q

What is the Rule 13(a) test for a Compulsory Counterclaim?

A
  1. Issue of fact or law from same T.O.O.?
    sub test: Will substantially same evidence support or refute the claim ? logical relationship?
  2. does not require adding a party the court cannot acquire jurisdiction over
34
Q

Rule 20 permissive joinder of parties requires what 2 things if trying to join Plaintiff or Defendants?

A
  1. assert right to relief under same T.O.O.

2. ANY question of law or fact common to parties to join is present

35
Q

What rule can overrule the Rule 20 permissive joinder of parties?

A

Rule 42(b) that states the court may grant separate trials where efficiency of consolidated trial is outweighed by the potential prejudice to litigants

36
Q

Rule 14 - Impleading a 3rd party Defendant - states a ______ may implead any non-party who is or may be liable to them for ____ or _____ of the Plaintiff’s claim against them.

A

Defendant

All or Part

37
Q

Under Impleading Rule ____, the 3rd party must be impleaded within _____ days of the ______, otherwise the defendant must seek leave of the court who will grant as long as it does not cause _______ or prejudice to ongoing proceedings.

A

Rule 14

14 days

Answer (by Defendant)

Undue Delay

38
Q

What rule supports the Rule 14 of impleading where an Original 2nd Defendant can file crossclaim against 3rd party plaintiff ?
What is the meaning behind that rule?

A 
Rule 13(g) 
-pleading can state a crossclaim against a "coparty" (broad def.) if arising out of: 
same T.O.O. of the original action
39
Q

What has to happen for Rule 13(g) crossclaim against a coparty be okay to use?

A
  1. Defendant’s crossclaim has to be from same T.O.O. as original claim or counterclaim.
  2. may include that the coparty is liable to the defendant for all or part of a claim asserted in original complaint
40
Q

Rule ____ was used in Lehman v. RevolutionPortfolio by the Defendant FDIC to implead a 3rd count not associated with the same _____ but still permissible under this Rule once you have one valid claim.

A

18(a) - permissive joinder of claims

T.O.O.

41
Q

Required Party Joinder is what Rule?

A

Rule 19

42
Q

The test under Rule 19 to see if a party is indispensable involves what two overall questions?

A
  1. If the absent party is necessary to suit?

2. If cant be joined, are they indispensable so that dismissal is required?

43
Q

Under rule 19 the Necessary test, what are the two questions to ask to test the necessity of a party in Required Party Joinder?

A
  1. If complete relief is possible among current parties? OR

2. Absent party has legally protected interest in suit?

44
Q

If the absent party has a legally protected interest in the suit, under Rule 19, what must you then ask to determine the absent parties necessity to the suit?

A

Whether their legally protected interest will be impaired or impeded by judgment in their absence

45
Q

Under the second overall test for Rule 19, dismissal test, what 4 things are looked at to determine the answer?

A
  1. Prejudice to any party?
  2. Shaping of relief possible?
  3. Could adequate remedy be awarded?
  4. If NO ALTERNATIVE forum, be “extra cautious to dismiss”
46
Q

Rule ____ concerning Party Intervention can be done as a ______ or as ______ but both require timely intervention.

A

Rule 24

24(a) - as a Right

24(b) - Permissive Intervention

47
Q

in 2017 the Supreme Court held that a ________ _______ must meet standing requirements if they seek relief ________ than original Plaintiff.

A

Plaintiff Intervenor

Beyond or Different from

48
Q

Under Rule 24(a) - Intervention as a Right - the court MUST allow if __________ in subject matter of case, the ability to protect that interest _____ be impaired, and parties present ______ not adequately represent their interest.

A

Substantial Legal Interest
-standard lower than “right”

May

May

49
Q

Under Rule 24(b) permissive intervention the court may permit ANYONE who is given right by _____ or has a pleading sharing a common question of _____ or ____.

A

Statute

Fact

Law

50
Q

2 Elements of Subject Matter Jurisdiction?

A
  1. Complete Diversity

2. Amount is greater than 75 grand

51
Q

Federal Question exists if a well-pleaded complaint shows that the plaintiff’s right to recover depends on _______. If a Plaintiff wants to avoid this jurisdiction they can _________ reliance on it in the complaint.

A

Federal Law

Disclaim

52
Q

If the P’s complaint properly shows federal question jurisdiction, then _________ exists over all claims that are a part of the same _____.

A

supplemental

Transaction or Occurrence

53
Q

If the P’s complaint properly shows diversity jurisdiction, then _______ exists over all claims that are a part of the same _______.

A

Supplemental jurisdiciton

T.O.O

54
Q

True or False:
If the Plaintiff’s complaint fails to meet federal question or diversity under SMJ, then no supplemental jurisdiction exists.

A

True

55
Q

If a P brings a claim based on Federal Question jurisdiction, and the D asserts a state law claim from a different T.O.O, will there coverage by supplemental jurisdiction?

A

No - counterclaim has to be from same T.O.O.

56
Q

If P files suit against D under STATE law (diversity case), and then D impleads party C, would a claim by P against C be covered by supplemental jurisdiction or need independent jurisdiction?

A

NO supplemental because claim is through diversity case.

For same reason the P cant amend to add a non-diverse D

Crim Pro 1- Fall 2018 (2 decks)

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