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Civil Procedure > Pleadings and Motions > Flashcards

Pleadings and Motions Flashcards

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Civil Procedure 1L flashcards
1
Q

Pleadings - Concept

A

Formal document where party to legal proceeding sets forth or responds to allegation, claims, denials, defenses

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2
Q

Pleadings - Submission - Day deadlines - gral Rules

A
  • Period begins day after order and includes weekends and holidays
  • Submission electronically allowed - Submission until midnight of last day
  • Extension is possible if required before expiration
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3
Q

Pleadings - Submission - Day deadlines - Permitted extension post expiration when (3):

A

Motion is submitted showing excusable neglect (Not party’s own carelessness, inattention, or willful disregard):

1) Bc of unexpected /unavoidable hindrance/accident
2) Bc of reliance on the care and vigilance of the party’s counsel
3) on a promise made by the adverse party

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4
Q

Pleadings - Submission - Day deadlines - Prohibited extension cases (3)

A

1) JMOL (before submitted to jury or 28 days post entry judgment)
2) Motion for new trial (28 days post entry judgment)
3) Motion for relief from judgment (reasonable time or 1 year)

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5
Q

Pleadings - Complaint - gral

A
  • FR 3: civil action will commence with its filling
  • Must be filled in court + signed by attorney
  • P’s burden to obtain summons
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6
Q

Pleadings - Complaint - Gral Content Rules

A
  • Has to give enough notice to D of all material elements of each claim + facts/legal basis
  • If corporate P, it must disclose all its related entities
  • Any undisclosed claim can not be asserted at trial
  • These rules apply even for “notice pleading”
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7
Q

Pleadings - Complaint -“Notice Pleading”

A
  • Liberal application of FR 8 - Just general plausible allegation
  • Gral dx’s OK : i.e. pain and suffering
  • Court usually allows leave to amend when required by justice
  • Doesnt apply to special pleading matters
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8
Q

Pleadings - Complaint - Content - JARR

A

1) Jdx: Pjdx and SMJ
2) Allegation of facts: that generate plausibility of claim
3) Right to relief - legal theory - basis of claim + specific statute referred to.
4) Relief (remedy) request: specific

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9
Q

Pleadings - Complaint - Joinder of claims - gral

A
  • When P has mx claims/theories in a single complaint
  • Even when arising from different transactions of events
  • Court can separate bc of convenience, judicial economy or to avoid prejudice
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10
Q

Pleadings - Complaint - Single Complaint Rule

A

When claim arises from single transaction or event

  • No “spiting claims” possible
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11
Q

Pleadings - Complaint - Single Complaint Rule - Effect of “claim splitting”

A
  • Preclusion affects second claim in relation to judgment of second claim
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12
Q

Pleadings - Pre Answer Motions to dismiss - Gral

A
  • FR 12 - No need for “special appearance” by D
  • Any deficiency of the complaint is not waived by presenting this motion
  • If presented D must allege all possible defenses under FR12 once - if not they are barred for later motions
  • Court can recharacterize wrongly labeled motion to make it propert
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13
Q

Pleadings - Pre Answer Motions to dismiss - (5)

A

1) Lack of jdx
2) Insufficient Service
3) Failure to join a party
4) Improper venue
5) Failure to state claim upon which relief can be granted (12b6)

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14
Q

Pleadings - Answer - Concept

A

D’s first pleading that addresses the merits of the case setting forth defenses and counterclaims

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15
Q

Pleadings - Answer - Timing

A
  • Gral Rule: 21 days from service /60 days if outside of the US
  • When waiver of service: 60/90 days
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16
Q

Pleadings - Answer - Content (3)

A

1) Gral denials of allegations - enough if no further actual knowledge about claim
2) Affirmative defenses - expressly and specifically pleased
3) Counterclaims

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17
Q

Pleadings - Post Answer (or with) Motions to dismiss - (2)

A

1) Summary judgment motion (requires affidavit of support)
2) Judgment on the pleadings (12c)

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18
Q

Pleadings - Special Matters Pleading - Gral

A
  • Pleaded with particularity (ojo in relation to notice pleading)
  • Must include detail on relevant facts, time/place and condition precedent, and foreign laws
  • Special dx specified (i.e. medical expenses, lost profits)
  • Also details on affirmative defenses (assumption of risk, contributory N, comparative fault, fraud, SOL)
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19
Q

Pleadings - Special Matters Pleadings (4) FMBD

A

1) Fraud
2) Mistake
3) Breach of trust
4) Denial of contract capacicty

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20
Q

Pleadings - Formal and substantial requirements - FRCP 11

A
  • Signature by attorney on record
  • Not frivolous - r_easonably grounded_ in fact and warranted by law/Good Faith.
  • If to extend or modify law it must have enough arguments
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21
Q

Pleadings - FRCP 11 Sanctions for frivolous pleading

A
  • Attorney/law firm sanctioned
  • When fails to make reasonably inquiry of facts or legal merits
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22
Q

Pleadings - Challenge to pleadings - Gral

A

- gral rule: By Rule 12 motions to dismiss, but also possible w/answer

    • most of them dont address facts, BUT rather whether law allows the specific claim or defenses
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23
Q

Pleadings - Challenge to pleadings - Rule 12 motions to dismiss (8)

A

1- Lack of PJDX or SMJ (12b)

2- Improper venue (12b)

3- Insufficient process (12b)

4- Insufficient service of process (12b)

5- Failure to to state claim (12b6)

6- failure to join parties (12b)

7- Judgment on pleadings (12c)

8- Motion to strike - invalid defenses OR redundant/impertinent/scandalous matters (12f)

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24
Q

Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Gral

A
  • Is used as quick/easy way for D to avoid claim when is CLEAR will never prevails
  • -i.e. SOL, claims not recognized under substantial law of the jdx
  • Claim being too vague is grounds
25
Q

Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Standard applied by court when deciding

A

Strict scrutiny

    • rarely granted
    • avoid risk of denying P’s day in court
26
Q

Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Rule regarding factual allegations

A
  • Factual allegations in claim are deemed truth
  • BUT P must prove claim is factually possible
27
Q

Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Rules for ammendment

A

Allowed by court in lieu of dismissal

  • usually when P might be able to include a new or additional cause of action
28
Q

Pleadings - Challenge to pleadings - Rule 12 - Motion to dismiss for Failure to State Claim (12b6) - Conversion to motion for summary judgment

A
  • When parties introduce matters outside of pleadings in motion (all docs considered in motion wont trigger conversion)
  • Court can allow conversion to consider this extrinsic E, to allow discovery
  • When docs are referred to but not attached to pleading, court will consider them only if they are integral to the case to maintain motion 12b6 as such
29
Q

Pleadings - Challenge to pleadings - Rule 12 - Motion for judgment on the pleadings (12c)

A
  • Under similar standard of scrutiny as 12b6
  • By P in response to D’s answer, after closing of pleadings (different from 12b6 in that is not by D in response to P initial complaint)
30
Q

Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Gral

A
  • Some defenses ( as motions) must be raised timely and consolidated - IF NOT deemed waived - in order to promote judicial economy
31
Q

Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Specific rules - Waived if not timely presented in D’s answer (4)

A

1) Lack of PJDX
2) Insufficient Services
3) Lack of MC
4) Improper Venue

32
Q

Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Specific rules for Lack of SMJ motion

A

Can be presented at any time - even post judgment -no consolidation or waiver possible

33
Q

Pleadings - Challenge to pleadings - Rule 12 - Consolidation and Waiver - Specific rules for Lack of PJDX and Improver Venue

A
  • If challenge by pre-answer motion or in motion: need for consolidation along all other defenses
    • if not presented then deemed as waiver
  • When in answer: P is entitled to wait and file motion for improper venue later, having more time to investigate and draft motion
34
Q

Pleadings - Counterclaims - gral

A
  • Claim by a D opposing the claim of the P and seeking some relief from the P for the D. (Cause of action D vs P)
  • 2 types: compulsory and permissive
  • P claim tolls SOL on any D’s claim (avoid for P to wait until last minute to prejudice D)
35
Q

Pleadings - Compulsory Counterclaims

A
  • When claim arise from same transaction/occurrence as P’s claim
36
Q

Pleadings - Permissive Counterclaims

A
  • When claim arises from different set of facts
37
Q

Pleadings - Crossclaims

A
  • By D vs other potential co-D
  • Arises from same transaction/occurrence as P’s original claim
  • Always permissive - never compulsory
38
Q

Amended Pleadings - Allowed Types (2)

A

1) As a matter of right
2) By leave of court OR written consent of the other party

39
Q

Amended Pleadings - As a matter of right - Timing (2)

A
  • Once before responsive pleading is served - answer (not pre answer motion) OR
  • Within 21 after service if no responsive pleading is permitted OR not yet on trial calendar
40
Q

Amended Pleadings - By leave of court/written consent of party - BUUF conditions for not-admitance

A

1) Bad Faith
2) Undue delay
3) Unfair prejudice
4) Futility

+ Court attitude towards amendment: Better chances adding defenses/claims (causes of action) than adding parties

41
Q

Amended Pleadings - By leave of court/written consent of party - Special rule for Rule 12b6- Motion to dismiss for failure to state a claim

A

Court can allow P to amend in lieu of dismissal WHEN is possible for P to include new or additional cause of action

42
Q

Amended Pleadings - “Relate back” - Gral

A
  • For purposes of SOL amended pleading is treated as it occurred at time of original pleading filing
  • Specific treatment if new claim/defense or new party
  • If new party added it can potentially alter diversity for federal SMJ
43
Q

Amended Pleadings - “Relate back” - When new claim/defense

A

Relates back if it new claim/defense arises from similar transaction/occurrence

  • even if reason for amendment is excusable neglect or as conscious trial strategy
44
Q

Amended Pleadings - “Relate back” - When new party (3 conditions)

A

1) New party arises from similar facts as original pleading
2) Added Party receives due notice
3) Not unfair - that new party knew or had known of possible action vs them if not for mistaken identity

45
Q

Amended Pleadings - “Relate back” - When new party - Prohibition

A

When amendment is because of inexcusable neglect or trial strategy

46
Q

Appearance and Default - Gral

A
  • If D doesn’t answer within set period (21-60 - 60/90) + P entitled to default judgment
  • No notice required for D, UNLESS D has appeared in court, then 7 days at least prior to audience, time in which D can prevent by filing and serving answer to motion
47
Q

Appearance and Default - D “Appearance” when (3)

A

1) Filing answer
2) Filing/serving notice of appearance
3) Involved in informal negotiations when aware of claim and w/intention to defend himself.

48
Q

Appearance and Default - Default Judgment Effects

A
  • D is deemed to have admitted truth of P’s claims by not contesting them
  • NO BURDEN OF PROOF for P
  • Prevents default party from presenting defenses and/or compulsory counterclaims
  • Generates Preclusion if court had jdx and D received notice and had opp to appeal.
49
Q

Appearance and Default - Default Judgment - Amount Determination

A
  • If unliquidated, court might require hearings or other proceeding to establish - Rarely more than requested
50
Q

Appearance and Default - Default Judgment - Prohibitions vs (3) MIM

A

1) Minors
2) Incompetents
3) Member of military

51
Q

Default Judgment - Motion to vacate - gral

A
  • aka “motion for relief from judgment”, “motion to vacate judgment”.
  • As challenge of default judgment for “good cause” or “just cause”
  • After default judgment is entered by court
52
Q

Default Judgment - Motion to vacate - Causes (2)

A

1) For lack of PJDX
2) Other - based on D’s “admission of error” (i.e. lose summons, fail to retain counsel, etc) - “JUST cause”

53
Q

Default Judgment - Motion to vacate - For lack of PJDX

A
  • Filed within reasonable time from entered default judgment
  • No need to defend on merits of cause -i.e. P used substitute service w/o using due diligence to locate D
54
Q

Default Judgment - Motion to vacate - For Other reasons (non jdx) - Court considerations (4)

A

1) Meritorious defense: has D plausible defense on the merits?
2) Reason for D’s non-appearance: i.e. misunderstand/miscommunication w/clients, attorney ,etc
3) D’s diligence on vacating default judgment
4) Effect upon P - prejudice by vacating -i.e. so much time passed crucial E no longer available

55
Q

Pleadings - Submissions - Extension

A

Possible only when requested before original period expires

56
Q

Pleadings - Complaint - Gral Content Rules - Consequence of not including claim

A

Can not be asserted in trial

57
Q

Pleadings - Complaint - Counterclaim - SOL rules

A

P claim tolls SOL on any D’s claim (avoid for P to wait until last minute to prejudice D)

58
Q

Default Judgement - Burden of proof for P

A

NONE - failure to answer by D is deemed as admission to the truth of P’s claims

59
Q

Default Judgment - Default

A
  • Entered by county clerk - Can be set aside by “good cause”

Civil Procedure (15 decks)

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