Pleadings and Motions Flashcards
Amended Complaint and Timeliness of Answer
within original time remaining
OR
14 days from service of amended complaint
if there is No clear evidence that D committed the charge, is atty subject to sanctions?
no sanctions if atty to best of her info, know, and belief certifies that the factual contentions
- have evidentiary support
- will likely have evidentiary support after reasonable opportunity for discovery
What the requirements for a preliminary injunction? Is notice required?
Issued prior to a full hearing on the merits, upon notice to the defendant
May be issued to a P if:
1. P is likely to succeed on the merits
2. P is likely to suffer irreparable harm in the absence of relief
3. Balance of equities is in P’s favor, and
4. Injunction is in the public interest
What the requirements for a TRO? How long can it last? Is notice required? Is notice required in CA?
- immediate and irreparable injury
- cert efforts to give notice
- moving pt provides some security to compensate adverse pt if wrongly granted
14 days
Notice is not required if irreparable harm and atty certifies efforts made to give notice and why notice should not be required
in CA, if notice, 15 day max
Does a pt’s failure to supplement earlier mandatory disclosures foreclose him from using an affidavit from a witness not disclosed in opposing a MSJ?
Yes - rule 37 if a pt fails to disclose info or ID a witness as required by rule 26 (initial disclosure), pt may not use that info to supply evidence on a motion
What is a 12b6 failure to state a claim must demonstrate?
that even if every fact asserted is taken as true, no recovery is plausible under any legal theory
When does relation back apply to a new claim?
when it is STO - D would have had notice from the original complaint that an amended pleading would have the new allegation
when MUST a necessary party be joined?
what are the factors for determining whether a party is necessary?
if it doesn’t destroy diversity,
§ court cannot grant complete relief to existing parties without that party, or
§ his interests may be impaired or impeded if the case proceeds without joining him, or
§ there is risk of inconsistent judgment or do liability
__________
i. Extent to which judgment would prejudice the parties in the person’s absence;
ii. Extent to which prejudice could be reduced or avoided by protective provisions;
iii. Whether a judgment rendered would be adequate; and
iv. Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder
when may a party be joined?
i. a claim is made by each Π and against each Δ relating to or arising out of the same series of occurrences or tx, and
ii. question of fact or law common to all the parties
when can a party intervene as of right?
when can a party intervene with ct’s discretion? is there a special requirement for CA?
right:
- non[arty has interest in property or transaction that is subject of the action
- result may impair nonparty’s interst
- nonparty’s interest not adequately represented by existing parties
permissive - ct must consider undue delay/prejudice to existing pts
- conditional right under fed statute
- intervenor’s claim/defense and original action share common question of law or fact
CA - intervenor’s intersest must be “direct and immediate”
what the requirements and special rules for interpleader?
rule 22 - permits nationwide service, usual jx req
section 1355 - requires only minimum diversity, $500 aic
what are the requirements for cert of classaction?
CANT
PERQ
what the requirements for class action under CAFA? when can a federal ct NOT hear a case under CAFA?
- minimum diversity
- aggregate AIC >$5M
- ## 100+ class membersno fed ct jx if primary Δs are states, state officials, gov’t entities; or action relates to affairs of a corporation and is based on laws of state of incorporation; or action solely relates to federal securities laws
when is notice required for a class action? what is required?
common question of law or fact
best notice practicable to all “reasonably identifiable”
requirements for class action in CA?
Class action when Q is of common or general interest, of many persons, or numerous pts + oicable to bring all before the court. Requires (1) ascertainable class and (2) well-defined community of interest among class members (factors: predominate common Q of law or fact, substantial benefit to pts and ct, adequate rep of interest).
