Pleading 2 Flashcards
Rule 41b
Unless dismissal says otherwise, it operates as adjudication on the merits (with prejudice)
Exceptions to 41b
dismissal for lack of Jdx, improper venue or failure to join necessary party under R19
Lomax rule
The phrase dismissed for failure to state a claim can refer to claims dismissed both with and without prejudice
Lomax reasoning
R41b does not make dismissed for failure to state a claim mean dismissed with prejudice , phrase means only what it says
Lomax critique 1
Cts split over 12b1 or 12b6 controlling, if 12b1 don’t care about prejudice at all
Lomax critique 2
rule dismissal without prejudice and with leave to amend not a strike, those are magic words too how different than w/o prejudice
Lomax critique 3
If courts keep giving leave to amend (especially for factual insufficiency), you can keep amending, Footnot 4 erases effect of Lomax
Argument for 4th era of Civil procedure
judge more control, more ability to dismiss before discovery, harder to get broad discovery, SJ focal point (1% cases tried)
Why courts generally liberal in allowing amendments
increase judicial efficiency
Why amend a complaint/answer?
change legal theories, new facts
Rule about amended and supplemental pleadings
15
Rule 15a
can amend once within 21 days of serving, after that only with court’s leave. freely given when justice so requires
15c is about
relation back of amendments
15(c)(1)(A)
Amendment relates back to date of original pleading if the law provides that SoL allows it
15(c)(1)(B)
Amendment relates back to date of original pleading if amended claim rose out of original transaction/occurrence
15(c)(1)(C)
Amendment relates back to date of original pleading if received such notice of the action that it will not be prejudiced AND knew or should know action would have been brought but for mistake concerning proper party’s identity
Court considerations in deciding whether to grant 15a amendment
unreasonable delay, prejudice in preparation, bad faith, whether argument is futile
Rule 4(m)
If D not served within 90 days after complaint is filed, court must dismiss action without prejudice against that D
Singletary is about
three factors for new party relation back
Singletary rule
To bring new party in (1) claim must arise out of same transaction/occurrence (2) new D must receive constructive notice in 90 days so not prejudiced in mounting defense (3) known or should know named but for mistake
Adding a new party under 15c1c is __ than adding new claim
more stringent
15c1B about ..
adding new claim
15d is about ..
supplemental pleading
What is a supplemental pleading
Events happened since date of original pleading but could not have been pleaded specifically at that time
When does SoL usually begin
last element to occur in prima facie case
Public policy behind SoL
peace of mind, amass evidence while still fresh, avoid depleting court resources on stale cases unlikely to find out what happened
Technically can also amend with ___ but usually still up to court
opposing party consent
15a and 15c have ___
different tests for allowing amendment
Why Singletary under 15c
SoL expired for original action
Singletary holds that the type of notice D receives affects
amount of prejudice D suffers
Why no constructive notice for pyschologist,
didn’t share attorney with OG Ds, not high enough in prison hierarchy to share identity of interest
Notice doesn’t require
official service of process, can be more informal
Notice for 15c requires not just — but __
notice of the event, notice of P suit
Varlack holding
adequate notice when added D saw copy of complaint naming place where he worked and “unknown employee” as D, which he knew referred to him
Schiavone holding
so closely related in business operations/other activities that institution of action against one notice of litigation to the other
Varlack holding about John Doe
(3rd circuit) - lack of knowledge of particular D identity can be a mistake under 15(c)(1)(C)
every other court contrary
In most courts, lack of knowledge of D identity is __
not mistake under 15c1C
When issue not raised in pleadings tried by parties’ express or implied consent
, must be treated as if raised in the pleadings 15(b)
Regan in Singletary didn’t know should’ve been named —
because complaint stated unknown corrections officers
Krupski rule
relation back under 15c depends on what party to be added knew or should’ve known, not the amending party’s knowledge
Krupski reason 1
consisent with 15c purpose, balance interest of protecting Ds with SoL with interest in resolving disputes on their merits
Krupski reason 2
D telling P 3x mistake evidence they knew
Krupski reason 3
Rule mandates relation back, not discretionary like 15a
Krupski reason 4
list of requirements for relation back and diligence not one
Krupski critiwue
could’ve denied under 15a (need both to litigate) but allowed
Contracts can ___ SoL
change
