Procedures Once in the Right Court Flashcards
What must a complaint include?
A statement of the grounds for jurisdiction, a short and plain statement of the claim showing the plaintiff is entitled to relief, and a demand for relief.
What is the pleading standard?
The plaintiff must sufficient grounds to support a plausible claim. Fraud, mistake, and special damages have a heightened standard which requires particularity or specificity.
How and when must a defendant respond to the complaint?
The defendant must respond by a motion or answer within 21 days of the complaint being served (60 days if service is waived).
Which defenses are waived if not raised in the defendant’s answer or first motion?
(1) personal jurisdiction
(2) improper process
(3) improper service of process
(4) venue
Which Rule 12 motions address issues of form?
Rule 12(e) - motion for a more definite statement - used when a complaint is so vague or ambiguous that the defendant cannot respond
Rule 12(f) - motion to strike - any party can ask the court to remove redundant or immaterial things from a pleading
What defenses under Rule 12 can be raised after the defendant’s answer or first motion?
Failure to state a claim or failure to join an indispensable party can be raised as late as at trial.
Lack of subject matter jurisdiction can be raised at any time.
When must a defendant answer if her motion to dismiss is denied?
14 days after the notice of denial.
What does the defendant do in the anwer?
(1) admit, deny, or state she does not have sufficient knowledge to admit or deny
(2) raise affirmative defenses
What happens if a defendant does not deny an allegation in the complaint?
The failure to deny is deemed an admission, except regarding the amount of damages.
Does a plaintiff need to respond to a defendant’s assertion of an affirmative defense?
No. The allegations in the answer are deemed denied by the plaintiff.
When does a plaintiff have a right to amend the complaint?
A plaintiff has a right to amend the complaint once of course no later than 21 days after the defendant serves the first Rule 12 response.
When does a defendant have a right to amend the answer?
The defendant has a right to amend the answer no later than 21 days of serving it.
May an amended answer include the waivable Rule 12(b) defenses?
Yes, if the defendant’s first response was an answer.
May a pleading be amended after the period for of right amendment has expired?
Yes, if the court gives leave to amend or if the other party gives written consent.
What is a variance?
A variance exists when the evidence at trial does not match what was pleaded.
When may a pleading be amended in response to a variance?
When the other party fails to object to the evidence at trial and the proponent moves to amend.
When does an amended pleading relate back to join a claim to the original complaint?
An amended pleading relates back when the pleadings concern the same transaction, occurrence, or conduct as the original pleading.
When does an amended pleading relate back to join a defendant to the action?
An amendment relates back if:
(1) the amendment concerns the same conduct, transaction, or occurrence, and
within the time period for service of process,
(2) the defendant had such knowledge of the case that she will be able to avoid prejudice, and
(3) the defendant knew or should have known that but for a mistake, she would have been named as a defendant.
What is a supplemental pleading and is there a right to file them?
A supplemental pleading sets forth things that happened after the pleadings were filed. There is no right to file a supplemental pleading.
What is the Rule 11 signature requirement?
When a lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief and after a reasonable inquiry,
(1) the document is not for an improper purpose,
(2) the legal contentions are warranted by law or a nonfrivolous argument for a change in law, and
(3) the factual contentions and their denials have evidentiary support or are likely to after further investigation.
Who may Rule 11 sanctions be assessed agaist?
Rule 11 sanctions may be assessed against a party, lawyer, or the lawyer’s firm.
Who files a request for Rule 11 sanctions?
A party may file by motion or the court may raise the issue sua sponte via an order to show cause.W
Who are monetary sanctions under Rule 11 paid to?
Monetary sanctions are paid to the court.
What is the Rule 11 safe harbor provision?
A party cannot immediately file for Rule 11 sanctions. She must serve the motion on the other parties and give them 21 days to fix the problem before filing the motion with the court.
When may a plaintiff join additional claims?
A plaintiff may join any claims she has against an adverse party, even if the additional claim is unrelated, as long as there is subject matter jurisdiction for the claim.
Which claims are proper when there are multiple plaintiffs or defendants?
Claims by multiple plaintiffs or against multiple defendants must arise from the same transaction or occurrence ad raise at lease on common question of law or fact.
When is an absentee a necessary party?
An absentee is a necessary party when the court cannot accord complete relief among the parties without the absentee, the absentee’s interest may be harmed if she is not joined, or the absentee claims an interest that subjects a party to a risk of multiple obligations.
When is joinder feasible?
Joinder is feasible if there is personal jurisdiction over the absentee and there will be subject matter jurisdiction over the claim by or against the absentee.
When is there personal jurisdiction over an absentee?
When the absentee is served within a district of the United States and is not more than 100 miles from where the summons was issued. If these criteria are not met, a traditional contacts analysis is needed.
What factors does a court consider when deciding whether to proceed with a case without an absentee party?
The court will consider whether there is an alternate forum available, the likelihood of actual harm to the absentee, and whether the court can shape relief to avoid harm to the absentee.
What is an indispensable party?
An absentee is indispensable when the case cannot proceed without joining him.
What is a counterclaim?
A counterclaim is a claim against an opposing party.
Where is a counterclaim asserted?
A counterclaim is asserted in the defendant’s answer.
Does a plaintiff have to respond to a counterclaim?
Yes, within 21 days of service of the counterclaim.
Which counterclaims are compulsory?
A compulsory counterclaim is one that arises from the same transaction or occurrence as the plaintiff’s claim.
What happens if a compulsory counterclaim is not asserted?
It is waived.
What is a permissive counterclaim?
A permissive counterclaim is one that does not arise from the same transaction or occurrence as the plaintiff’s claim.
Must a permissive counterclaim be asserted in the same action as the plaintiff’s claim?
No, it can be asserted in a separate action.
What is a crossclaim?
A crossclaim is a claim against a coparty that arises from the same transaction or occurrence as the underlying action.
Is a crossclaim compulsory?
No.
Can a crossclaim be asserted in a separate action?
Yes.
What is an impleader claim?
An impleader claim is one where a defending party is bringing in a new party to shift to the new party the liability that the defendant will owe the plaintiff (indemnity or contribution).
May a plaintiff assert claims against an implead defendant and vice versa?
Yes, as long as the claims arise out of the same transaction or occurrence and there is subject matter jurisdiction.
When is there personal jurisdiction over an impleaded party?
There is personal jurisdiction if the impleaded party is served in a district of the United States, not more than 100 miles from where the summons was issued. Otherwise, personal jurisdiction is determined based on the traditional contacts analysis.
What is intervention?
Intervention is when a nonparty brings herself into the case as a plaintiff or defendant.
Is there a timeframe for intervention?
Intervention must be timely.
What is intervention of right?
Intervention of right is when an absentee’s interest may be harmed if he is not joined and the interest is not adequately represented by the current parties.
What is permissive intervention?
Permissive intervention is when the absentee’s claim or defense and the pending case have at least one common question of law or fact.
Is permissive intervention allowed?
Usually yes, as long as there is subject matter jurisdiction, unless it would cause delay or prejudice someone.
Is an intervenor plaintiff a plaintiff for the purpose on the limitation of supplemental jurisdiction in diversity cases?
Yes.
What is interpleader?
Interpleader permits a stakeholder to require two or more adverse claimants to litigate the claim among themselves to determine which claims are valid.
What is Rule 22 interpleader?
Rule 22 requires complete diversity between the stakeholder and all adverse claimants and over $75,000 in controversy.
