Motions

Question 1

What type of complaints require additional details?

Answer 1

Fraud, special damages, mistake

Question 2

What are the 3 basics a proper
Complaint needs?

Answer 2

1. SMJ
2. Short statement of claim
3. Demand for relief

Question 3

How can a defendant respond to a complaint?

Answer 3

1. Motion (strike, more definitive statement, dismiss)
2. Answer to allegations (dent/admit)
3. Raise defense

Question 4

What 3 things are waived if defendants does not object in 1st response to complaint?

Answer 4

PJ, venue, service of process

Question 5

Can a plaintiff add additional claims via joinder?

Answer 5

Yes as long as court has SMJ over new claim

Question 6

What do multiple plaintiffs or defendants need to join additional claims they may have? (Joinder)

Answer 6

1. Arise out of same transaction or occurrence
2. Raise at least 1 common question of fact

Question 7

When will a court force a non party to join a case?

Answer 7

If it can’t give complete relief, party will be harmed, or risk of multiple suits

Question 8

What is a a counterclaim?

Answer 8

Claim by the defendant against the plaintiff.

Question 9

What is a compulsory counterclaim?

Answer 9

A claim that arises out of the same transaction or occurrence. Defendant must use it or lose it.

Question 10

What is a permissive counterclaim?

Answer 10

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.

Question 11

Are cross claims (against co party) ever compulsory?

Answer 11

No

Question 12

What is impleader?

Answer 12

When the defendant blames another party for liability. (Not appropriate if alleging other party is completely liable-motion to dismiss)

Question 13

2 Dismissal Rule

Answer 13

Can only voluntary dismiss a claim 2x (before Def answers). If more than 2x, than operates as an adjudication on the merits.

Question 14

When can a plaintiff get a default judgment from a clerk?

Answer 14

If:

1. Def has not responded or appeared
2. Affidavit of certain damages ($)
3. Def not a minor nor incompetent

Question 15

Summary Judgement

Answer 15

When there is not genuine issue of material fact

Timing: no later than 30 days after discovery

Question 16

JMOL

Answer 16

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

Question 17

Renewed JMOL

Answer 17

Can submit after judgement. Must have submitted OG JMOL.

Timing: 28 days after judgement

Question 18

Claim Preclusion (Res Judicata)

Answer 18

1. Same plaintiff and defendant
2. Final judgement on merits
3. Same claim

Question 19

Issue Preclusion (Collateral Estoppel)

Answer 19

1. Valid final judgement on the merits
2. Issue actually litigated and determined
3. Issue essential for judgement in 1st case
4. Used against party in case 1(or privity)
5. Fair? See if had a chance to be heard or could have joined case 1.

Question 20

Interpleader Definition

Answer 20

A way for a holder of property to initiate a suit between 2 or more claimants of property.

Question 21

2 Avenues of Federal Interpleader

Answer 21

1. FRCP 22:
   diversity Jx, PJ, & proper venue
2. 28 U.S.C.
   Amount to n controversy =$500 or more, diversity of any 2 claimants, nationwide PJ, venue= proper where any Def resides.

Question 22

Grounds for a void judgement

Answer 22

1. Mistake, surprise, excusable neglect
2. Newly discovered evid (that couldn’t have been discovered)
3. Fraud/Misconduct by party

Question 23

Motion for New Trial Timing

Answer 23

Timing: must be filed no later than 28 days after judgement

Question 24

Diversity cases that cannot be removed to Federal Ct

Answer 24

Violence against women claims, some RR actions, and state worker’s compensation claims

Question 25

Motion to Strike a Defense

Answer 25

Must do within 21 days of Def serving his answer. Must claim that Defs defense is insufficient or immaterial.

Question 26

Demand for jury trial

Answer 26

Can be filed with complaint but must be within 14 days after service of last pleading

Question 27

When does a TRO automatically expire?

Answer 27

After 14 days.

*extension is allowed for good cause

Question 28

Doctrine if Mutuality

Answer 28

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.

Question 29

Offensive Non-Mutual Collateral Estoppel

Answer 29

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

Question 30

What are 3 grounds for involuntary dismissal?

Answer 30

1. Plain doesn’t prosecute
2. Plain doesn’t comply with FRCP or Ct order
3. Plain has no right or o relief

*Bars subsequent suits

Question 31

When the $ amount of damages is uncertain, what must a party do to get a default judgement?

Answer 31

Must apply for a default and if other parts has appeared, must be given written (at least) 7 day notice before hearing

Question 32

Standard for motion for new trial

Answer 32

Verdict was against the weight of the evidence

Question 33

When can a trial courts order after a pre trial judgement be modified?

Answer 33

Only to prevent a manifest injustice