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CivPro > Rules > Flashcards

Rules Flashcards

1
Q

Rule 7

A

Pleadings and motions

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2
Q

Rule 7(a)

A

pleadings

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3
Q

what pleadings are allowed under 7(a)?

A

1) complaint
2) answer to a complaint
3) answer to a counterclaim designated as a counterclaim
4) answer to a cross-claim
5) third-party complaint
6) answer to a third-party complaint
7) if the court orders one, a reply to an answer

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4
Q

7(b)

A

motions and other papers

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5
Q

what must a motion consist of?

A

1) be in writing unless made during a hearing or trial
2) state with particularity the ground for seeking the order
3) state the relief sought

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6
Q

Rule 8

A

General Rules of Pleading

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7
Q

8(a)

A

claim for relief

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8
Q

what must a claim for relief contain:

A

1) short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction
2) short and plain statement of the claim showing that the pleader is entitled to relief
3) a demand for the relief sought which may include relief in the alternative or different types of relief

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9
Q

8(b)

A

defenses: Admissions and denials

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10
Q

in responding to a pleading what must a party do?

A

1) state in short and plain terms its defenses to each claim asserted against it
2) admit or deny the allegations asserted against it by an opposing party

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11
Q

what must a denial do?

A

fairly respond to the substance of the allegation

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12
Q

8(c)

A

affirmative defenses

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13
Q

in responding to a pleading, what must a party affirmatively state?

A

avoidance or affirmative defense

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14
Q

what do avoidance and affirmative defenses include?

A

1) accord and satisfaction
2) arbitration and award
3) assumption of risk
4) contributory negligence
5) duress
6) estoppel
7) illegality
8) injury by fellow servant
9) laches
10) license
11) payment
12) release
13) res judicata
14) statute of frauds
15) waiver

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15
Q

what must each allegation be in pleading?

A

simple, concise, and direct. No technical form required

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16
Q

if a party mistakingly designates a defense as a counterclaim or a counterclaim as a defense, what must the court do?

A

if justice requires, treat the pleading as though it were correctly designated and may impose terms for doing so

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17
Q

Rule 9

A

pleading special matters

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18
Q

in general except when the court has jurisdiction what must a pleading need NOT allege?

A

1) a party’s capacity to sue or be sued
2) a party’s authority to sue or be sued in a representative capacity
3) legal existence of an organized association of persons that is made a party.

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19
Q

9(b)

A

fraud or mistake; conditions of mind

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20
Q

in alleging fraud or mistake what must a party state?

A

with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge and other conditions of a person’s mind may be alleged generally

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21
Q

Rule 10

A

form of pleadings

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22
Q

what must every pleading have?

A

must have a caption with the court’s name, a title, a file number and a Rule 7(a) designation

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23
Q

what must the title of the complaint have?

A

all the parties; the title of other pleading, after naming the first party on each side, may refer generally to other parties

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24
Q

Rule 11

A

signing pleadings, motions, and other papers; representation to the court and sanctions

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25
Q

Rule 11(c)

A

sanctions

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26
Q

how must a motion for sanctions be made?

A

separately from any other motion and must describe the specific conduct that allegedly violates 11(b)

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27
Q

how must the motion be served in a sanction?

A

under Rule 5

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28
Q

under Rule 11 what must a sanction imposed be limited to?

A

what suffices to deter repetition of the conduct or comparable conduct of others similarly situated.

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29
Q

Rule 12

A

defenses and objections

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30
Q

what is the time for serving a responsive pleading under rule 12?

A

21 days unless another time is specified by this rule or federal statute

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31
Q

If the respondent timely waived service under rule 4(d) how long do they have to answer?

A

within 60 days after the request for waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States

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32
Q

How long does a party have to serve an answer to a counterclaim or crossclaim?

A

within 21 days after being served with the pleading that states the counterclaim or crossclaim

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33
Q

if the court denies a motion or postpones its disposition until trial how long must the responsive pleading be served? 12(a)(4)

A

within 14 days after notice of the court’s action

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34
Q

if the court grants a motion for a more definite statement how long must the responsive pleading be served? 12(a)(4)

A

within 14 days after the more definite statement is served

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35
Q

what defenses may a party assert by motion under rule 12(b)

A

1) lack of SMJ
2) lack of PJ
3) improper venue
4) insufficient process
5) insufficient service of process
6) failure to state a claim upon which relief can be granted
7) failure to join a party under rule 19

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36
Q

when must a motion asserting any of the defenses of 12(b) when must they be made?

A

before pleading if a responsive pleading is allowed

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37
Q

if a pleading sets out a claim for relief that does not require a responsive pleading, what must an opposing party do under 12(b)?

A

they may assert at trial any defense to that claim

38
Q

are any defenses or objections waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion under 12(b)?

A

no

39
Q

12(c)

A

motion for judgement on the pleadings

40
Q

after pleadings are closed but early enough not to delay trial what may a party do under 12(c)?

A

move for judgment on the pleadings

41
Q

12(d)

A

result of presenting matters outside the pleadings

42
Q

12(e)

A

motion for a more definite statement

43
Q

when must a motion for a more definite statement be made? 12(e)

A

before filing a responsive pleading

44
Q

what must a motion for a more definite statement point out? 12(e)

A

the defects complained of and the details desired

45
Q

if the court orders a more definite statement and the order is not obeyed within 14 days after notice of order or within the time the court sets what may the court do? 12(e)

A

strike the pleading or issue any other appropriate order

46
Q

12(f)

A

motion to strike

47
Q

what may the court strike from a pleading? 12(f)

A

an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.

48
Q

how may the court act when striking a pleading? 12(f)

A

on its own or on motion made by party either before responding to the pleading or if a response is not allowed within 21 days after being served with the pleading

49
Q

12(g)

A

joining motions

50
Q

what may a motion under rule 12(g) be joined with?

A

any other motion allowed by this rule

51
Q

what must a party that makes a motion under rule 12(g) must NOT do?

A

make another motion under this rule, raising a defense or objection that was unavailable to the party but omitted from its earlier motion.

52
Q

how does a party waive any defense under Rule 12(b)(2)-(5)?

A

omitting it from a motion in the circumstances described in rule 12(g)(2) or by failing to make it by motion under this rule or include it in a responsive pleading or in an amendment allowed by rule 15(a)(1) as a matter of course.

53
Q

if a court determines at any time there is lack of SMJ what must the court do?

A

dismiss the action

54
Q

Rule 13

A

Counterclaim and crossclaim

55
Q

when must a pleading state as a counterclaim any claim that at the time of service- the pleader has against an opposing party? 13(a)(1)

A

1) when it arises out of the transaction or occurrence that is subject matter o the opposing party’s claim.
2) when it does not require adding another party over whom the court cannot acquire jurisdiction.

56
Q

what are the exception of when a pleader need not state a counterclaim

A

1) when the action was commenced, the claim was subject of another pending action
2) when the opposing party sued on its claim by attachment or other process that did not establish PJ over the pleader on the claim and the pleader does not assert any counterclaim under this rule.

57
Q

what are the guidelines for relief in a counterclaim? 13(c)

A

need not diminish or defeat the recovery sought by the opposing party. it may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party.

58
Q

do counterclaim under 13(d) expand the right to assert a counterclaim or claim to credit against the US or US officer or agency?

A

no

59
Q

if the court permits a party to file a supplemental pleading what must it assert under 13(e)?

A

a counterclaim that matured or was acquired by the party after serving an earlier pleading.

60
Q

13(g)

A

crossclaim against a co-party

61
Q

when can a pleading state as a crossclaim any claim by one party against a co-party?

A

if the claim arises out of the transaction or occurrence that is the subject matter of the original action or counterclaim if the claim relates to any property that is subject matter of the original action.

62
Q

Rule 15

A

amended and supplemental pleadings

63
Q

Rule 15(a)(1): amending as a matter of course

A

a party may amend its pleading ONCE without asking leave from the court

64
Q

how long does a party have to file an amendment under rule 15(a)(1)? (matter of course)

A

21 days after serving it or if the pleading is one that requires a response it can be 21 days after service or responsive pleading or 21 days after service of motion under rule 12(b)(6) or whichever is earlier.

65
Q

under Rule 15(a) amendments that are not a matter of course what is the only way a party may amend?

A

only with the opposing party’s written consent or the court’s leave.

66
Q

Under rule 15(a)(2) when should a court freely give leave?

A

when justice so requires

67
Q

under Rule 15(a)(3) how long do you have to respond to an amendment?

A

unless the court states otherwise, within 14 days of service of the amended pleading, whichever is later.

68
Q

15(b)

A

amendments during and after trial

69
Q

under 15(b)(1) if AT trial a party objects that evidence is not within the issues raised in the pleading what may the court do?

A

permit the pleadings to be amended

70
Q

when an issue is not raised by the pleadings is tried by the parties’ express or implied consent how must it be treated? 15(b)(2)

A

in all respects as if raised in the conform them to the evidence and to raise an unleaded issue but failure to amend does not affect the trial at issue.

71
Q

15(c)

A

relation back of amendments

72
Q

when does an amendment relates back what does it relate back to the original date of the original pleading? 15(c)(1)

A

1) when law that provides SOL allows relation back
2) amendment asserts a claim or response that arose out of the conduct, transaction or occurrence set
3) amendment changes party names

73
Q

1332

A

diversity of citizenship; amount in controversy

74
Q

1367

A

supplemental jurisdiction

75
Q

In a civil action when the district court has original jurisdiction what else do they have under 1367?

A

supplemental jurisdiction over all other claims that are related to claims in the action within such original jurisdiction that they form part of the case or controversy under article III

76
Q

in a civil action of which the district court has original jurisdiction founded solely on 1332, do the district courts have supplemental jurisdiction over the claims by the plaintiff?

A

no

77
Q

when can district courts decline to exercise supplemental jurisdiction over a claim under 1367(a)?

A

1) when the claim raises a novel or complex issue of state law
2) the claim substantially predominates over the claims over the district court with original jur.
3) district court has dismissed all claims over which it had original jur
4) in exceptional circumstances there are other compelling reasons for declining.

78
Q

1441

A

Removal

79
Q

when can a civil action brought in state court of which the district court has original jur. be removed and by who?

A

by the defendant to the district court of the US for the district and division embracing the place where such action is pending.

80
Q

when determining whether a civil action is removable based on the basis of jurisdiction under 1332(a)what shall happen with the citizenship of defendants sued under fictitious names?

A

they shall be disregarded

81
Q

when can a civil action that’s removable based solely on the basis of the jurisdiction under 1332(a) not be removed?

A

if any of the parties in interest properly joined and served as defendants is a citizen of a state in which such action is brought.

82
Q

1404

A

change of venue

83
Q

when can a civil action be transferred from a district court to any other district or division?

A

for the convenience of the parties and witnesses, in the interest of justice where it might have been brought or to any district or division to which all parties have consented.

84
Q

1406

A

cure or waiver of defects

85
Q

what can a district court of a district in which filed a case laying venue in the wrong division or district do?

A

dismiss or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought

86
Q

2072

A

Rules of procedure and evidence; power to prescribe

87
Q

Under 2072 what does the Supreme Court have the power to prescribe?

A

general rules of practice and procedure and rules of evidence for cases in the US district courts and court of appeals

88
Q

where is venue proper?

A

1) district where ANY DEFENDANT resides if all defendants are residents of the state in which the district is located
2) district where substantial part of events or omissions giving rise to the claim occurred.
3) district where any defendant is subject to PJ, if there’s no other district that the case may be brought.

89
Q

what venue is proper if multiple districts in the state where corp. is subject to PJ?

A

in any district where contact would be sufficient to be subject to PJ

90
Q

if no district where would residence be for corp?

A

place where they have the most significant contacts

91
Q

where can non-US citizens (lawfully admitted residents that are not citizens) be sued?

A

in any judicial district and are disregarded if there are multiple defendants

CivPro (10 decks)

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