Pleading 2

Question 1

Rule 41b

Answer 1

Unless dismissal says otherwise, it operates as adjudication on the merits (with prejudice)

Question 2

Exceptions to 41b

Answer 2

dismissal for lack of Jdx, improper venue or failure to join necessary party under R19

Question 3

Lomax rule

Answer 3

The phrase dismissed for failure to state a claim can refer to claims dismissed both with and without prejudice

Question 4

Lomax reasoning

Answer 4

R41b does not make dismissed for failure to state a claim mean dismissed with prejudice , phrase means only what it says

Question 5

Lomax critique 1

Answer 5

Cts split over 12b1 or 12b6 controlling, if 12b1 don’t care about prejudice at all

Question 6

Lomax critique 2

Answer 6

rule dismissal without prejudice and with leave to amend not a strike, those are magic words too how different than w/o prejudice

Question 7

Lomax critique 3

Answer 7

If courts keep giving leave to amend (especially for factual insufficiency), you can keep amending, Footnot 4 erases effect of Lomax

Question 8

Argument for 4th era of Civil procedure

Answer 8

judge more control, more ability to dismiss before discovery, harder to get broad discovery, SJ focal point (1% cases tried)

Question 9

Why courts generally liberal in allowing amendments

Answer 9

increase judicial efficiency

Question 10

Why amend a complaint/answer?

Answer 10

change legal theories, new facts

Question 11

Rule about amended and supplemental pleadings

Answer 11

15

Question 12

Rule 15a

Answer 12

can amend once within 21 days of serving, after that only with court’s leave. freely given when justice so requires

Question 13

15c is about

Answer 13

relation back of amendments

Question 14

15(c)(1)(A)

Answer 14

Amendment relates back to date of original pleading if the law provides that SoL allows it

Question 15

15(c)(1)(B)

Answer 15

Amendment relates back to date of original pleading if amended claim rose out of original transaction/occurrence

Question 16

15(c)(1)(C)

Answer 16

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

Question 17

Court considerations in deciding whether to grant 15a amendment

Answer 17

unreasonable delay, prejudice in preparation, bad faith, whether argument is futile

Question 18

Rule 4(m)

Answer 18

If D not served within 90 days after complaint is filed, court must dismiss action without prejudice against that D

Question 19

Singletary is about

Answer 19

three factors for new party relation back

Question 20

Singletary rule

Answer 20

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

Question 21

Adding a new party under 15c1c is __ than adding new claim

Answer 21

more stringent

Question 22

15c1B about ..

Answer 22

adding new claim

Question 23

15d is about ..

Answer 23

supplemental pleading

Question 24

What is a supplemental pleading

Answer 24

Events happened since date of original pleading but could not have been pleaded specifically at that time

Question 25

When does SoL usually begin

Answer 25

last element to occur in prima facie case

Question 26

Public policy behind SoL

Answer 26

peace of mind, amass evidence while still fresh, avoid depleting court resources on stale cases unlikely to find out what happened

Question 27

Technically can also amend with ___ but usually still up to court

Answer 27

opposing party consent

Question 28

15a and 15c have ___

Answer 28

different tests for allowing amendment

Question 29

Why Singletary under 15c

Answer 29

SoL expired for original action

Question 30

Singletary holds that the type of notice D receives affects

Answer 30

amount of prejudice D suffers

Question 31

Why no constructive notice for pyschologist,

Answer 31

didn't share attorney with OG Ds, not high enough in prison hierarchy to share identity of interest

Question 32

Notice doesn't require

Answer 32

official service of process, can be more informal

Question 33

Notice for 15c requires not just --- but __

Answer 33

notice of the event, notice of P suit

Question 34

Varlack holding

Answer 34

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

Question 35

Schiavone holding

Answer 35

so closely related in business operations/other activities that institution of action against one notice of litigation to the other

Question 36

Varlack holding about John Doe

Answer 36

(3rd circuit) - lack of knowledge of particular D identity can be a mistake under 15(c)(1)(C) every other court contrary

Question 37

In most courts, lack of knowledge of D identity is __

Answer 37

not mistake under 15c1C

Question 38

When issue not raised in pleadings tried by parties’ express or implied consent

Answer 38

, must be treated as if raised in the pleadings 15(b)

Question 39

Regan in Singletary didn't know should've been named ---

Answer 39

because complaint stated unknown corrections officers

Question 40

Krupski rule

Answer 40

relation back under 15c depends on what party to be added knew or should've known, not the amending party's knowledge

Question 41

Krupski reason 1

Answer 41

consisent with 15c purpose, balance interest of protecting Ds with SoL with interest in resolving disputes on their merits

Question 42

Krupski reason 2

Answer 42

D telling P 3x mistake evidence they knew

Question 43

Krupski reason 3

Answer 43

Rule mandates relation back, not discretionary like 15a

Question 44

Krupski reason 4

Answer 44

list of requirements for relation back and diligence not one

Question 45

Krupski critiwue

Answer 45

could've denied under 15a (need both to litigate) but allowed

Question 46

Contracts can ___ SoL

Answer 46

change