Motions and Timing Flashcards
Under Rule 3, a ____ action is commenced by filing a complaint with the court clerk. For the purposes of a federal ______ action, state law will apply to decide when the action commenced for the purposes of the SOL.
civil action;
diversity action.
Thus if state law provides that an action is commenced by service of process on a def, rather than by filing with the court, then the state rule will control for purposes of diversity.
Under Rule 6, whenever a time period states a number of days, the period _____ the day of the event that triggers the period. But it ______ every day following including what?
What happens if that day is a weekend or holiday?
EXCLUDES the day of the event;
But it INCLUDES including sat. sun. and holidays
If the last day of the period is a Sat Sun or holiday then the period is extended to include the next non-weekend or non-holiday day.
A written motion and a notice of hearing must be served at least ____ days prior to the hearing unless what?
An opposing affidavit must be served at least ____ days before the hearing.
14 days
ex parte, or the rules provide for it, or the court orders it
7 days
If the service or filing is made electronically or otherwise non traditionally then ____ days are added to the prescribed period.
3 days
Unless service is made in a foreign country, the plaintiff must serve the _____ and _____ within ____ days after filing the complaint. Unless plf can show ___ cause, then the court must do what? If plf cannot show ___ cause, what must the court do?
summons and complaint within 120 days
unless plf can show good cause why service was not timely made
If not shown, court must dismiss action without prejudice
A competent individual, corp. or association that is subject to service has a duty to avoid unnecessary expenses of serving the summons by ______ the service.
The incentive = if def timely waives service of process, then def does not have serve an answer to the complaint until ____ days after the request was sent (or ___ if its outside the US). The normal time period in which to answer must be served is ___ days after service of process.
waiving
60 days or 90 days if outside the US
normal time period is 21 days
A Temporary Restraining Order is what kind of injunction?
For how long must this remain in effect (no longer than?)
interlocutory injunction
court may set number of days, no more than 14 unless good cause or agreement by adversary
a complaint must include what 3 short and ___ statements regarding what?
short and plain statements re
grounds that establish the court’s SMJ;
short and plain statement establishing entitlement to relief;
and a demand for judgment for the relief sought by the pleader
Detailed factual allegations are not required, but a party may not merely recite the elements of a cause of action with broad, conclusory statements. (Twombly, Iqbal)
Rule 12(b) Motion to Dismiss may be filed __ to filing an answer and may raise any or ALL of the following defenses:
prior to filing answer
lack of SMJ (this may be raised at anytime)
lack of pj (must be raised in pre answer motion or in answer if no pre answer motion or it is waived)
improper venue (must be raised in pre answer motion or in answer if no pre answer motion or it is waived)
insufficient process (must be raised in pre answer motion or in answer if no pre answer motion or it is waived)
insufficient service of process (must be raised in pre answer motion or in answer if no pre answer motion or it is waived)
failure to state a claim upon which relief can be granted
failure to join a necessary or indispensable party
Motion To Dismiss for ____ to State a _____ for which relief can be _____ (Rule 12(b)(6))
Under Rule 12 b 6, a claim for ___ can be dismissed if it either fails to ____ a legal theory of ____
or fails to ____ facts sufficient to support the cognizable claim.
In deciding a motion under Rule 12 b 6, courts treat all well pleaded facts of the complaint as ___, resolve all doubts and inferences in the _____ favor, and view the pleading in the light most favorable to the ____.
Failure to State a claim for which relief can be granted
Under Rule 12 b 6, a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support the cognizable claim.
true,
plaintiff,
plaintiff
Motion for ____ on the Pleadings (under Rule 12(c)) is often -___ utilized because of motions under Rule 12 b 6, and motions for ____ judgment under Rule ___
judgment on the pleadings is often NOT utilized
summary judgment under rule 56
Motion for a More ____ Statement (Rule 12(e)) when a claim for relief is so ____ or ____.
Are courts reluctant to grant this motion?
Definite
claim for relief is so vague or ambiguous
YES courts are reluctant to grant this motion
Motion to ___ (under Rule 12(f)) may be heard if a pleading contains any insufficient _____ or immaterial, impertinent or ______ material.
Strike
defense
scandalous material
The Answer must ____ or ____ the allegations of the plaintiff’s complaint. The answer must state any avoidance or _____ defense or that ____ is waived. A party way raise as many alternative and _______ defenses as are applicable.
admit or deny or (insufficient information, but only after a reasonable investigation into whether the info exists)
affirmative defense or that defense is waived. A party may raise as many alternative (and inconsistent) defenses as are applicable.
If a def has a claim against the ____, then the def may state it as a ______ in the answer to the complaint.
Under certain circumstances, a counterclaim will be _____ under Rule 13 and must be pleaded or it will be ______ in any ______ litigation.
plaintiff,
counterclaim
Under certain circumstances, a counterclaim will be compulsory under rule 13 and must be pleaded or it will be precluded in any future litigation.
If ANY motion is made under Rule 12 a defendant will ____ have to file an answer while the motion is _____.
If a court denies or postpones disposition of the motion until trial on the ____, then the answer must be served within ____ days after notice of the court’s action.
NOT have to file an answer while the motion is pending.
until trial on the merits, then the answer must be served within 14 days
A ____ is a response by the plaintiff to a ______ answer.
It can also be a _____ by a defendant to a ______ counterclaim answer, a third party ____, or a crossclaim _____.
In general, a party must serve a reply to an answer within ____ days after being served with an order to reply.
A reply is a response by the plaintiff to a def’s answer.
It can also be a response by a def to a plf’s counterclaim answer, a 3rd party answer, or a crossclaim answer.
21 days
A party may amend a pleading once as of ____ within ____ days if no responsive pleading is due, OR if a responsive pleading is ___, within ____ days within service of the responsive pleading or within ___ days of being served with a motion under Rule 12(b) whichever is earlier.
This means that a party may amend his complaint even ______ being served with the answer.
A party may amend a pleading once as of right within 21 days if no responsive pleading is due, OR
if a responsive pleading is due, within 21 days within service of the responsive pleading, OR
within 21 days of being served with a motion under Rule 12 b whichever is earlier.
even AFTER being served with the answer
The court shall ____ give _____ to amend a pleading when ____ so requires.
The amendment will be generally _____ unless the amendment would result in ____ prejudice to the _____ party.
HOwever, when the court has issued an order regarding the trial plan after a pretrial _____, the court may modify that order only to prevent manifest injustice.
The court shall freely give leave to amend a pleading when justice so requires.
The amendment will be generally permitted unless the amendment would result in undue prejudice to the opposing party.
However when the court has issued an order regarding the trial plan after a pretrial conference, the court may modify that order only to prevent manifest injustice.
Rule 11 establishes the standards that ____ and individual parties must meet when filing _____, motions or other papers.
Under Rule 11(b), by presenting to the court a pleading or other paper an attorney (or pro se) certifies that to the best of her knowledge, info and belief, formed after an inquiry reasonable under the circumstance that:
the paper is not being presented for any ____ purpose;
the claims, defenses etc are warranted by ____ law;
the _____ contentions have evidentiary support;
the denials of factual contentions are ____ on the evidence.
Rule 11 establishes attorneys and other individual parties must meet when filing pleadings, motions or other papers.
the paper is not being presented for any improper purpose;
the claims and defenses are not warranted by existing law;
the factual contention have evidentiary support;
the denials of factual contentions are warranted on the evidence.
A plaintiff seeking a preliminary injunction must establish that: (i) she is likely to ______ on the merits; (ii) she is likely to suffer ________ harm in the absence of relief; (iii) the balance of ______ is in her favor; and (iv) the injunction is in the best interest of the _____. All four of these factors must be satisfied.
If the affected party can recover damages, the harm is not ______.
A plaintiff seeking a preliminary injunction must establish that: (i) she is likely to succeed on the merits; (ii) she is likely to suffer irreparable harm in the absence of relief; (iii) the balance of equities is in her favor; and (iv) the injunction is in the best interest of the public. All four of these factors must be satisfied.
If the affected party can recover damages, the harm is not irreparable.
