Motions Flashcards
What type of complaints require additional details?
Fraud, special damages, mistake
What are the 3 basics a proper
Complaint needs?
- SMJ
- Short statement of claim
- Demand for relief
How can a defendant respond to a complaint?
- Motion (strike, more definitive statement, dismiss)
- Answer to allegations (dent/admit)
- Raise defense
What 3 things are waived if defendants does not object in 1st response to complaint?
PJ, venue, service of process
Can a plaintiff add additional claims via joinder?
Yes as long as court has SMJ over new claim
What do multiple plaintiffs or defendants need to join additional claims they may have? (Joinder)
- Arise out of same transaction or occurrence
- Raise at least 1 common question of fact
When will a court force a non party to join a case?
If it can’t give complete relief, party will be harmed, or risk of multiple suits
What is a a counterclaim?
Claim by the defendant against the plaintiff.
What is a compulsory counterclaim?
A claim that arises out of the same transaction or occurrence. Defendant must use it or lose it.
What is a permissive counterclaim?
A defendants claim against another co party. It does not arise out of the same transaction or occurrence, so can be raised in separate suit.
Are cross claims (against co party) ever compulsory?
No
What is impleader?
When the defendant blames another party for liability. (Not appropriate if alleging other party is completely liable-motion to dismiss)
2 Dismissal Rule
Can only voluntary dismiss a claim 2x (before Def answers). If more than 2x, than operates as an adjudication on the merits.
When can a plaintiff get a default judgment from a clerk?
If:
- Def has not responded or appeared
- Affidavit of certain damages ($)
- Def not a minor nor incompetent
Summary Judgement
When there is not genuine issue of material fact
Timing: no later than 30 days after discovery
JMOL
Also known as “directed verdict”. Claim that other party has insufficient evidence. If granted, can’t go to jury.
Timing: At trial after opposing party has been heard
Renewed JMOL
Can submit after judgement. Must have submitted OG JMOL.
Timing: 28 days after judgement
Claim Preclusion (Res Judicata)
- Same plaintiff and defendant
- Final judgement on merits
- Same claim
Issue Preclusion (Collateral Estoppel)
- Valid final judgement on the merits
- Issue actually litigated and determined
- Issue essential for judgement in 1st case
- Used against party in case 1(or privity)
- Fair? See if had a chance to be heard or could have joined case 1.
Interpleader Definition
A way for a holder of property to initiate a suit between 2 or more claimants of property.
2 Avenues of Federal Interpleader
- FRCP 22:
diversity Jx, PJ, & proper venue - 28 U.S.C.
Amount to n controversy =$500 or more, diversity of any 2 claimants, nationwide PJ, venue= proper where any Def resides.
Grounds for a void judgement
- Mistake, surprise, excusable neglect
- Newly discovered evid (that couldn’t have been discovered)
- Fraud/Misconduct by party
Motion for New Trial Timing
Timing: must be filed no later than 28 days after judgement
Diversity cases that cannot be removed to Federal Ct
Violence against women claims, some RR actions, and state worker’s compensation claims
Motion to Strike a Defense
Must do within 21 days of Def serving his answer. Must claim that Defs defense is insufficient or immaterial.
Demand for jury trial
Can be filed with complaint but must be within 14 days after service of last pleading
When does a TRO automatically expire?
After 14 days.
*extension is allowed for good cause
Doctrine if Mutuality
Prohibits a party (not part of OG suit) to use that judgement to bind a party who was part of the OG suit. Most CT’s no longer recognize.
Offensive Non-Mutual Collateral Estoppel
Allows a party (not part of OG suit) to use a judgement against a party who was part of OG suit.
Case by case by analysis based on several factors:
•Issue fully litigated?
•Was party a “wait & see”?
•multiple new plains? Less likely to allow
•Is def in 2nd suit the gov? Not allowed
What are 3 grounds for involuntary dismissal?
- Plain doesn’t prosecute
- Plain doesn’t comply with FRCP or Ct order
- Plain has no right or o relief
*Bars subsequent suits
When the $ amount of damages is uncertain, what must a party do to get a default judgement?
Must apply for a default and if other parts has appeared, must be given written (at least) 7 day notice before hearing
Standard for motion for new trial
Verdict was against the weight of the evidence
When can a trial courts order after a pre trial judgement be modified?
Only to prevent a manifest injustice
