Pleadings Flashcards

Question

SMJ & Counterclaims

Answer 1

Subject matter jurisdiction. We must assess whether it invokes diversity or FQ jurisdiction. If so, it’s OK in federal court. If not, we try supplemental jurisdiction.

Answer 2

This is a claim against a co-party. It must arise from the same T/O as the underlying action. But it is not compulsory – you may assert it here or sue separately.

Answer 3

You may use SMJ, but No Supplemental jurisidiction because the claim is not asserted by the P

Answer 4

Once you file a counterclaim or crossclaim (or any claim) you can join an additional claim to it -- even if that claim has nothing to do with the others. This additional claim (like any claim in federal court) must invoke federal SMJ. So you assess whether it invokes diversity or FQ. If neither diversity nor FQ is met, then try supplemental jurisidiction

Answer 5

1. Right to amend. 2. If there’s no right to amend 3. Variance 4. Amendment after the statute of limitations has run (“relation back”).

Answer 6

Plaintiff has a right to amend once within 21 days after D serves her first rule 12 response

Answer 7

If there’s no right to amend, seek leave of court. It will be granted if “justice so requires.” What factors do courts look to in ruling on this? * Delay, * prejudice and * futility of amendment

Answer 8

That’s where the evidence at trial does not match what was pleaded. At or after trial, P can move to amend the complaint to conform to the evidence. -- This ensures that the pleadings match what was actually tried.

Answer 9

1. To join a new claim 2. To change a defendant after the statute has run

Answer 10

Amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading. Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.

Answer 11

This will relate back if: 1. It concerns the same conduct, transaction, or occurrence as the original; 2. The new party knew of this case within 120 days of its filing; and 3. She also knew that, but for a mistake, she would have been named originally. -- This applies when P sued the wrong D first, but the right D knew about it.

Answer 12

These set forth things that happened after the pleading was filed. (Amended pleadings are about things that happened before the pleading was filed but were not asserted until later.)

Answer 13

No, its always discretionary But the court will often do so unless it will cause delay or prejudice.

Answer 14

Applies to all documents except discovery (which are treated by another rule). When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry: 1. The paper is not for an improper purpose, and 2. The legal contentions are warranted by law (or nonfrivolous argument for law change), and 3. The factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation). In addition, you make this certification every time you “present” a position to the court (e.g., when you later advocate a position taken in the document).

Answer 15

The party, the attorney or the firm

Answer 16

Before imposing a sanction on you, the court must give you chance to be heard. Court usually issues an “order to show cause” why sanctions should not be imposed. The court must give a chance to be heard before imposing a sanction on anyone.

Answer 17

To deter, not to punish

Answer 18

Often, courts impose non-monetary sanctions (e.g., require lawyer to attend professionalism classes). Monetary sanctions, if any, are often paid to court, not to the other party.

Answer 19

No You serve the motion on other parties but cannot file it. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed.