Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Federal Civil Procedure > Pleadings > Flashcards

Pleadings Flashcards

You may prefer our related Brainscape-certified flashcards:
Civil Procedure 1L flashcards
1
Q

3 requirements of a pleading?

A

Statement of grounds for SMJ

Short and plaint statement of the claim, showing entitled to relief.

Demand for relief sought

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What does “notice pleading” mean?

A

Only need enough detail to put the other side on notice.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Today, SCOTUS requires what of pleading?

A

Facts supporting a plausible claim.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

A D can challenge a complaint using what Rule?

A

12(b)(6)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What three matters must be pleaded with PARTICULARITY or SPECIFICITY?

A

Fraud

Mistake

Special Damages.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

A D can respond to a pleading in one of two ways: by ___ or _____

A

By motion

By answer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

How long does D have to file a responsive pleading?

A

21 days

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

If D waived service, how long does he have to respond the complaint?

A

60 days from when P mailed the waiver form.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What are the seven Rule 12(b) defenses? KNOW THIS!

A 
Lack of SMJ
Lack of PJ
Improper Venue
Improper Process
Improper Service
Failure to State a Claim
Failure to Join and Indispensible Party
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Rule 12(b) defense can be put in a motion, answer, or both?

A

Both

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Which four 12(b) defense are waivable if not put in the first responsive pleading?

A

Lack of PJ

Improper Venue

Improper Process

Improper Service

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

When does a party waive defense of lack of SMJ?

A

never

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

If a case has been removed to fed court and it turns out the federal lacks SMJ, what does the fed court do?

A

Remand.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What 2 things does D do in his Answer?

A

Respond to allegations

Raise affirmative defenses.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

In responding to P’s allegations in an Answer, D must do one of these 3 things:

A

Admit

Deny

State you lack sufficient info to admit or deny.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Can you state that you lack sufficient info to admit or deny if the answer is in your control, but a pain in the ass to determine?

A

No. You have a duty to investigate things in your control

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is D never deemed to admit?

A

Damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

A counterclaim is a claim against whom?

A

Opposing party

19
Q

After D serves a counterclaim against P, what does P have to do?

A

Respond in 21 days.

20
Q

Two types of counterclaims:

A

Compulsory and Permissive

21
Q

A compulsory counterclaim arises . . .

A

From the same T/O as P’s claim.

22
Q

If D does not file a compulsory counterclaim, then what effect?

A

waived, unless already asserted in another case.

23
Q

Lois and Meg, each driving their own car, collide and each is injured. Lois sues Meg. Meg answers and defends the suit. Then Meg files a new case against Lois concerning the same wreck. OK? Explain.

A

No. Meg had a compulsory counterclaim and failed to file, so claim is waived.

24
Q

How must a permissive counterclaim relate to the underlying case?

A

It doesn’t

25
Q

A permissive counterclaim still needs to be subject to what?

A

Court’s D, FQ, or S jurisdiction.

26
Q

A cross claim is claim against whom?

A

A co-party

27
Q

What must be a true of a cross claim?

A

Must arise from the same T/O

28
Q

What sort of cross claims are compulsory?

A

None

29
Q

D1 files a cross claim against D2. If D2 has a claim he wants to file against D1, is it consider cross or counter? Why?

A

Counter. Now against an opposing party.

30
Q

Once you file a counter or cross claim (on any claim), you can/cannot join an additional claim to it, even if that claim has nothing to do with the others.

A

Can

31
Q

P has a right to amend once within how long of D’s first Rule 12 response?

A

21 days.

32
Q

How many times does a P have a RIGHT amend?

A

once

33
Q

D has a right to amend once within how many days of serving his Answer?

A

21 days.

34
Q

How many times does D have a RIGHT to amend?

A

once

35
Q

If there is no RIGHT to amend, what should a party do?

A

Seek leave of court.

36
Q

When will a court grant a right to amend (if right no longer exists)?

A

When justice so requires

37
Q

Factors to decide whether “justice so requires” the party to have permission to amend? (3)

A

Delay

Prejudice

Futility of Amendment

38
Q

If P introduces evidence at trial that does not match what was pleaded, what two things must be true for P do to keep evidence in?

A

D cannot object

Move to amend to conform to the evidence.

39
Q

Amended pleadings can “relate back” (i.e., get around SOL problem) IF they . . .

A

Concern the same conduct, transaction, or occurrence ad the original pleading.

40
Q

What three requirements for a change in defendant to relate back?

A

Concern the same conduct, transaction, or occurrence ad the original pleading.

The new party knew of this case within 120 days of filing; and

The new party also knew that, but for a mistake, she would have named originally.

41
Q

A supplemental pleading sets forth things that happened when?

A

After the pleading was filed.

42
Q

When is there a right to file a supplementary pleading?

A

Never

43
Q

If a party violates Rule 11 and you move for sanctions, how long do they have to cure?

A

21 days

Federal Civil Procedure (13 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions