Pleading and Trial Flashcards
How long does a defendant have to respond to a complaint?
21 days from service of process, or if process is waived 60 days.
Which defenses may be pleaded in a 12(b) motion or an answer if no 12(b) motion is filed?
i) Lack of SMJ
ii) Lack of PJ
iii) Improper Venue
iv) Insufficient process
v) Insufficient service of process
vi) failure to state a claim upon which relief can be granted
vii) failure to join a necessary party under Rule 19
What is a 12(b)(6) motion:
A 12(b)(6) motion is a motion to dismiss for failure to state a claim upon which relief can be granted.
What is the heightened standard for pleading required to survive a 12(b)(6) motion in the wake of Twombly and Iqbal?
The plaintiff must allege sufficient facts to raise the claim to a level that plausibly gives rise to an entitlement of relief.
If a defendant makes a pre-answer motion and it is denied, how long does the defendant have to file his answer after the court’s action?
14 days. Rule 12(a)(4)(A)
What are the requirements for Statutory Interpleader?
SMJ: Diversity Jurisdiction is met if any two claimants are citizens of different states, and the amount in controversy exceeds $500
PJ: Statutory interpleader provides for nationwide personal jurisdiction and service of process
Venue: is proper in any federal judicial district where one claimant resides.
Deposit: The stakeholder is required to deposit the property with the court or post a bond in the amount
What are the Rule 23 requirements for class action representatives?
i) The class must be so NUMEROUS that joinder of all members is impracticable
ii) There must be questions of law or fact that are COMMON to the class
iii) The claims or defenses of the representatives must be TYPICAL of the class
iv) The representatives must fairly and ADEQUATELY protect the interests of the class.
(N.C.T.A)
v) The class must also fit within one of three situations in Rule 23(b)
(1) Risk of Prejudice
(2) Final Equitable Relief
(3) Common Legal or Factual Questions
What are the requirements for a class action under the Class Action Fairness Act of 2005?
i) The class must have at least 100 members
ii) Primary defendants are not states or other governmental entities
iii) The action does not involve securities-related cases
iv) The amount in controversy exceeds $5M
v) Minimum Diversity Exists
Permissive Joinder of Parties
Permissive joinder is available for plaintiffs and defendants where the claims arise out if the same transaction or occurrence or any question of law or fact common to all plaintiffs or defendants is present.
The Court must also have SMJ. Supplemental jurisdiction does not extend to defendants who would defeat diversity jurisdiction.
Plaintiffs with claims that do not meet the statutory minimum requirement may be joined
How many depositions does a party get without leave?
10
What is the general rule regarding the availability of jury trials?
In general, an action at law is tried on demand to a jury, but an action in equity is not. If a new cause of action unknown at common law is created, the court looks to the remedy sought to determine if it is legal or equitable.
When must a party demand a jury trial?
Any party must make a demand for a jury trial in writing in a pleading or within 14 days after service of the last pleading.
How large must a jury be?
A jury must have at least 6 but no more than 12 members. Each juror must participate in the verdict unless excused for good cause.
How long does a party have to file a notice of appeal?
The notice of appeal must be filed within 30 days after the judgment is entered.
What is the final judgment rule?
The final judgment rule says that federal courts have jurisdiction over appeals from final judgments of the district courts.
A final judgment is one that leaves nothing for the court to do but execute the judgment.
