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Federal Civil Procedure > PLEADINGS > Flashcards

PLEADINGS Flashcards

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Civil Procedure 1L flashcards
1
Q

What does FRCP 11 require?

A 
Requires attorney (or party representing herself, called a pro se party) to sign all
papers (except discovery documents, which are treated by another rule).
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2
Q

When you sign a paper what are you certifying?

A

When you sign it, you are certifying that to the best of your knowledge and belief, after reasonable inquiry:
1. The paper is not for an improper purpose,
2. Legal contentions are warranted by law (or nonfrivolous argument for law
change), and
3. Factual contentions and denials of factual contentions have evidentiary
support (or are likely to after further investigation).

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3
Q

When do you also make the same certifications as when you sign a paper?

A

every time you “present” a position to the court (e.g., when you later advocate a position taken in the document)

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4
Q

What if there is bad conduct by the attorney though papers or at presentment?

A

Rule 11 sanctions may be levied (they are discretionary) against attorney, firm, or party.

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5
Q

Are Rule 11 sanctions supposed to punish or to deter a repeat of bad conduct?

A

They are to deter bad conduct.

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6
Q

Can Rule 11 sanctions be non-monetary?

A

Yes, they can be non-monetary sanctions.

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7
Q

Where are rule 11 money sanctions often paid?

A

Monetary sanctions are often paid to court, not to the other party.

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8
Q

What must the court do before it imposes rule 11 sanctions?

A

Before imposing sanctions, court must give you a chance to be heard.

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9
Q

If another party violates Rule 11, can a party move for sanctions now?

A

No

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10
Q

What do you do initially if the other party violates Rule 11?

A

You serve the motion on other parties but cannot file it.

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11
Q

What does the party do after they are served with the motion that they violated rule 11?

A

They get a chance to fix the problem to avoid the sanctions

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12
Q

How long does the party have after they are served with the motion that they violated rule 11? what the time period is it called?

A

The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions

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13
Q

What happens if the party served with the Rule 11 violation motion does not fix the problem?

A

The party that sent the motion can now file it with the court.

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14
Q

Can the court raise Rule 11 problems on its own?

A

Yes

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15
Q

What does ‘sua sponte’ mean?

A

The court, on its own

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16
Q

If the court raises Rule 11 problems on its own by demanding that a party show cause why there should be no sanctions, does the court have to give the party a safe harbor of 21 days to fix the problem?

A

No, that is only for motions by a party.

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17
Q

What effect does filing a complaint do?

A

filing a complaint commences an action

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18
Q

What are the three requirements of a complaint?

A

a. Statement of grounds for subject matter jurisdiction;
b. Short and plain statement of the claim, showing entitled to relief;
c. Demand for relief sought.

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19
Q

In stating a claim what is the standard?

A

You must allege facts supporting a plausible claim.

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20
Q

How do you determine plausibility?

A

To determine plausibility, the judge uses her own experience and common sense.

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21
Q

What three matters must be pleaded with even more detail – with particularity or
specificity?

A

fraud, mistake, and special damages.

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22
Q

Why must you always the details of particularity or specificity for special damages?

A

Special damages do not normally flow from an event

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23
Q

What rule requires the defendant to respond?

A

Rule 12

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24
Q

In what two ways does rule 12 require the D to respond?

A

(1) by motion or (2) by answer.

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25
Q

To avoid a default judgment when must the D respond?

A

Within 21 days after service of process.

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26
Q

Are motions pleadings?

A

No.

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27
Q

What are motions?

A

they are requests for a court order

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28
Q

What motion do you bring if the pleading is so vague D can’t frame a response?

A

A Motion for more definite statement

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29
Q

What motion do you bring if the other party demand for jury when no right exists?

A

A motion to strike

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30
Q

What is a motion to strike aimed at?

A

A motion to strike is aimed at immaterial things, e.g., demand for jury when no right exists;

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31
Q

What party can bring a motion to strike?

A

Any party.

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32
Q

What are the 12B defenses?

A

(1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process (problem with the papers); (5) insufficient service of process; (6) failure to state a claim; (7) failure to join indispensable party.

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33
Q

Which 12 B defenses are waivable?

A

(2) lack of personal jurisdiction; (3) improper venue; (4) insufficiency of process (problem with the papers); (5) insufficient service of process

34
Q

Rule 12B waivable defenses are waived unless the defendant does what?

A

THE D RAISED THE DEFENSE IN THEIR FIRST RULE 12 RESPONSE(MOTION OR ANSWER)

35
Q

P sues D. D files a timely motion to dismiss for defective service of process. The court denies the motion, after which D files and serves her answer, asserting as defenses lack of personal jurisdiction and improper venue. OK? Why?

A

No, she has waived both defenses because they are waivable and are not in her first rule 12 response.

36
Q

At trial, D moves to dismiss for failure to join an Aindispensable party@ and
for failure to state a claim on which relief can be granted. OK?

A

Yes, this is fine, these two rule 12 defenses can be raised any time through trial.

37
Q

After trial, D asserts for the first time that the court lacks subject matter jurisdiction. OK?

A

Yes. Subject matter jurisdiction is never waived. Raise it for the first time anytime.

38
Q

Is the answer a pleading?

A

Yes, the answer is a pleading.

39
Q

Within what time period must the D serve an answer?

A

21 days

40
Q

What if the D made a Rule 12 motion, and it is denied? within what time period must the D serve an answer then?

A

she must serve her answer within 14 days after court rules on motion.

41
Q

What do you do in the answer?

A

Respond to allegations of complaint

42
Q

What are the 3 ways you can respond to the allegations of complaint?

A

(1) admit; (2) deny; (3) state that you lack sufficient information to admit or deny.

43
Q

What does stating that you lack sufficient information to admit or deny act as?

A

A denial

44
Q

When can the D not use the option of stating that you lack sufficient information to admit or deny?

A

The option can’t be used if the information is public knowledge or is in defendant’s control.

45
Q

What can failure to deny be constituted as?

A

Failure to deny can constitute an admission on any matter except damages.

46
Q

In his complaint, P alleges “D was intoxicated while driving his car.” In his answer, D said “P has no proof that I was intoxicated.” Did D make a mistake?

A

Yes, it is admitted intoxication because he did not deny it.

47
Q

What does raising an affirmative defense do?

A

These inject a new fact into the case, that will allow D to win

48
Q

What are some classic affirmative defenses?

A

statute of limitations, statute of frauds, and res judicata

49
Q

P sues D for breach of contract. D answers, denying material allegations. At trial, D introduces evidence that the contract was procured by P’s fraud, and is therefore unenforceable. P objects. Is this evidence admissible? Why or why not?

A

The evidence is inadmissible because it

relates to an affirmative defense that defendant failed to plead.

50
Q

What does a D need to do to use an affirmative defense?

A

A D must plead their affirmative defenses or risk waiver.

51
Q

What is a counterclaim?

A

a claim against an opposing party

52
Q

What are the two types of counterclaims?

A

Compulsory and permissive

53
Q

What is a compulsory counterclaim?

A

A compulsory counterclaim arises from the same T/O as P’s claim.

54
Q

When must a party raise a compulsory counter claim?

A

MUST BE FILED IN THE PENDING CASE, OR IT’S WAIVED. The claim cannot be asserted in another action.

55
Q

What is the ONLY compulsory counterclaim?

A

One that arises from the same Transaction or Occurrence as P’s claim.

56
Q

What is a permissive counterclaim?

A

A permissive counterclaim does not arise from same T/O as plaintiff’s claim.

57
Q

When can a permissive counterclaim be used?

A

You may file it with your answer in this case or can assert it in a separate case.

58
Q

Lois and Meg, each driving her own car, collide and each is injured. Lois sues Meg to recover for personal injuries. Meg answers and defends the suit and then institutes her own action against Lois to recover for her personal injuries. What is the result? Why?

A

Case dismissed because it was a compulsory counter claim and Meg failed to file it with her answer.

59
Q

Lois and Meg, each driving her own car, collide and each is injured. Lois sues Meg to recover for personal injuries. Meg moves to dismiss the first case and the court granted the motion, Does Meg need to file a compulsory counterclaim in this action?

A

No. Meg would not have to file a counterclaim in that case, because she was never
required to answer.

60
Q

If a counterclaim is procedurally OK in federal court, then what do you do?

A

Assess subject matter jurisdiction (SMJ) over the counter claim.

61
Q

What ways can you find SMJ over the counterclaim?

A

diversity or FQ jurisdiction. If so, it’s OK in federal court. If not, then try supplemental jurisdiction.

62
Q

What is a crossclaim?

A

This is a claim against a co-party

63
Q

What must a crossclaim arise from?

A

It must arise from the same T/O as the

underlying action.

64
Q

If you have a crossclaim, must you file it in the pending case?

A

No, crossclaims are always permissive.

65
Q

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). Sterling doesn’t know who’s at fault between the two drivers, but knows his car (worth $200,000) is totaled. Sterling wants to recover $200,000 for the property damage. What should Sterling do? Why?

A

Sterling must file a compulsory counterclaim against P It’s against an opposing party and arises from the same T/O as P’s claim, so it’s a compulsory counterclaim. Sterling may file a permissive cross-claim against Draper

66
Q

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). Sterling doesn’t know who’s at fault between the two drivers, but knows his car (worth $200,000) is totaled. Sterling wants to recover $200,000 for the property damage. Sterling files a compulsory counterclaim against P. What must you do next, and what is the result?

A

You must find SMJ. Here there is SMJ because it invokes diversity. (every P is from a different state than every D and is for over $75,000)

67
Q

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). Sterling wants to recover $200,000 for the property damage. What can Sterling do if he wants to sue Draper?

A

Sterling may file a crossclaim against Draper. It’s against a co-party and arises from the same T/O as the underlying case, so it’s a crossclaim.

68
Q

P (CA) sues Draper (NY) and Sterling (NY) for personal injuries of $500,000 arising from a car collision (Draper was driving Sterling’s car). Sterling wants to recover $200,000 for the property damage. Sterling files a crossclaim, is the crossclaim allowed in this case? Why or why not?

A

Yes, the crossclaim will be allowed in this case.
There is no subject matter jurisdiction because There is no diversity over the crossclaim, it is NY/NY. BUT there is supplemental jurisdiction. It meets the test because it arises out of the same T/O and this is not a claim by the P so the limitation does not apply.

69
Q

How many times does the P have a right to amend their pleadings? Within what time period?

A

Once, within 21 days after the defendant serves her first rule 12 response.

70
Q

How many times does the P have a right to amend their pleadings? Within what time period?

A

Defendant has a right to amend once within 21 days of serving his answer.

71
Q

What if there is no right to amend?

A

seek leave of court

72
Q

If you seek leave of the court to amend your pleadings (if there is no right to amend) under what condition will your leave be granted?
What three factors does the court look at?

A

it will be granted if “justice so requires.”

delay, prejudice and futility of amendment.

73
Q

What does variance refer to?

A

That’s where the evidence at trial does not match what was pleaded.

74
Q

P sues for breach of contract; D answers. At trial, P introduces evidence that D
assaulted him. D doesn’t object. OK?

A

Evidence of assault is admitted into evidence

because D didn’t object

75
Q

P sues for breach of contract; D answers. At trial, P introduces evidence that D
assaulted him. D doesn’t object. Evidence of assault is admitted into evidence. At or after trial, can P move to amend the complaint to conform to the evidence? Why or why not?

A

At or after trial, P can move to amend the complaint to conform to the evidence to show the assault claim. We want the pleadings to match what was tried.

76
Q

P sues for breach of contract; D answers. At trial, P introduces evidence that D
assaulted him. D objects. Is the evidence admissible? Why or why not?

A

Evidence of assault inadmissible because it is at “variance with the pleadings.”

77
Q

What is the amended pleadings “relate back” rule? What is the rules effect?

A

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.

78
Q

P files his complaint and has process served on July 1. The statute of limitations runs on July 10. In August, P seeks leave to amend to add a new claim. Is the new claim time-barred because the statute ran on July 10?

A

No, we would treat the August amendment as though it was filed on July 1.

79
Q

What three elements need to be met to change a defendant after the statute has run?

A

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.

80
Q

When does “relate back” apply to change a defendant after the statute of limitations has run?

A

This applies when P sued the wrong D first, but the right D knew about it.

81
Q

P is injured in a Sam’s Store. He sues “Sam Store, Inc.” before the statute runs and has process served on Sam within 120 days. P should have sued “Samco Ltd.” Sam is president of Samco Ltd. and is authorized to receive service. P discovers the problem after the statute runs, and seeks leave to amend to name Samco Ltd.
Will it relate back?

A

Yes

(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.

Federal Civil Procedure (14 decks)

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