Pretial Procedures Flashcards
What are diff. types of Pleadings?
complaints answers to complaints answers to counterclaims answers to crossclaims 3rd party complaints answers to 3rd party complaints replies to answers, if ordered by the court
What must a pleading include?
- must include a short and plain statement establishing the courts jdxn of a claim, which if true would entitle claimant to relief; and
- a demand for relief
- failure to include this is grounds for a 12b6 dismissal with prejudice (unless judge says otherwise)
How long does a party have to file an answer to a complaint?
21 days after service (includes weekends and holidays)
What affirmative defenses must a party plead in its answer or reply to a counterclaim?
accord and satisfaction arbitration award assumption of risk contributory neg. discharge in bankruptcy duress estoppel failure of consideration fraud illegality injury by fellow servant laches licenses payment release red judicata SOF SOL waiver
What objectives may be raised either by motion or responsive pleading?
lack of smj lack of pj improper venue insufficient process insufficient service 12b6 failure to join under FRCP 19
**failure to object in answer or pre-answer motion constitutes waiver for all EXCEPT smj , 12b6, failure to join
When can a party amend a pleading?
- once within 21 days of service of the original pleading; or if pleading requires a response, w/in 21 days after service of a responsive pleading
- all other amendments require leave of court subject to reason of delay and prejudice to the opposing party
Relation back occurs when:
- law allows relation back
- amendment asserts a claim or defense from the same conduct, transaction or occurrence as original claim
- amendment changes a party name, if done w/in 120 days, and was previously excluded by mistake
What is Rule 11?
- All court documents must be signed by an attorney of record
- documents cant be for presented for improper purpose
- there are valid claims of law or arguments for new laws
- factual contentions must have evidentiary support
- denials of factual contentions are reaonsably based on belief or lack of info
What are the standards for granting TROs or PIs?
- substantial likelihood of success on the merits
- irreparable harm will be suffered
- harm to plaintiff will be greater than harm to D
- remedy if granted will not be adverse to public interest
*** a court may issue a TRO without notice to the adverse party, while a PI requires notice to the parties
Counterclaims and crossclaims
may be based on any cause of action, even if unrelated to the subject of the complaint
A party subject to service of process may be joined if:
- in that party’s absence, the court cant grant complete relief among existing parties
- the party claims an interest relating to the subject of the action and an adjudication w/o the party may impede that party’s ability to protect there interests, or leave a party subject to risk of double, multiple or inconsistent obligations
- if a necessary party cant be joined, court should determine in equity and justice, if the action should proceed among the existing parties
When is interpleader used?( 19)
- When P has needs to resolve liability where there are 2 or more adverse claimants
- only applicable where multiple claims demand the same thing or obligation (usually property, prize or insurance policy)
When can a D implead a 3rd party
- After filing answer, if 3rd party “may be liable for all or part” of the P’s claim against D
Nonparties MUST be allowed to intervene if
- federal statute confers the right; OR
- a non party is asserting a protectable interest relating to the property or transaction involved in lawsuit (must be practically material for nonparty and their rights must not be adequately represented by original parties)
Nonparties MAY be allowed to intervene if
- federal statute confers the right; OR
2. nonparty has a claim or defenses that shares a common ? of law or fact
