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Civil Procedure > Rules > Flashcards

Rules Flashcards

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Civil Procedure 1L flashcards
1
Q

rule 4

A

summons

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2
Q

what does process consist of?

A

a summons and a copy of the complaint (tells D what the claims are)

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3
Q

who can service be made by?

A

any non party who is at leas 18

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4
Q

types of service

A

1) personal service (anywhere)
2) substituted service (only can be served at the D’s dwelling or usual abode and must serve someone of suitable age and discretion who resides there)
3) serve’s def’s agent
4) 4(e)(2) allows to use methods of service under state law (certified mail)

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5
Q

rules for service on businesses

A

1) serve an officer or manager or general agent
2) permits service of a summons anywhere within the state in which the district court sits (in harmony with enabling act)

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6
Q

how to waive service

A 
1) waiver by first class mail and easy to do
2 )plaintiff mails to the def process and 2 copies of a waiver form and self-addressed envelope
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7
Q

if D mails back waiver form what happens?

A

she waived formal service of process

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8
Q

why would a defendant waive service of process?

A

1) they will have longer to reply with defensive response
2) process requires 21 days but waiver you have 60
3) if they don’t return waiver and does not have good cause then the def must pay cost of service

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9
Q

what is the geographic limitation of serving process?

A

within a state which the fed ct sits

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10
Q

what is the special service rule of rule 4?

A

applies to parties joined under rules 14 or 19 and allows for service within a judicial district of the US and no more than 100 miles from where the summons was issued (“bulge rule”)

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11
Q

when is service permitted?

A

when authorized by a fed statute

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12
Q

what two steps does a limited federal long-arm statute call for? (international D)

A

1 )is D subject to jurisdiction in any of the 50 states?

2) do D’s contacts with the US satisfy due process

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13
Q

rule 5

A

service

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14
Q

Rule 8

A

complaints/pleadings

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15
Q

what does rule 8 require the D to do?

A

either admit, deny or plead insufficient info in response to each allegation.

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16
Q

what does failure to deny under rule 8 constitute?

A

an admission but doesn’t apply to damages

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17
Q

what was rule 8(d) motivated by (amended and supplemental pleadings)

A

belief that anyone with any injury should be able to plead a case w/o needing to know the terms.

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18
Q

under rule 8 what must a complaint contain?

A

a “short and plain” statement of why the court has jurisdiction and why the pleader is entitled to relief and what relief is being sought.

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19
Q

Rule 9

A

special circumstances

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20
Q

what does rule 9 do?

A

heightened the pleading requirement beyond the requirements of Twiqbal. (fraud, mistake or special damages. need details)

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21
Q

Rule 11

A

signing/representations/sanctions

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22
Q

what does rule 11 apply to?

A

all docs except discovery

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23
Q

characteristics of rule 11

A

1) requires attorney to sign all docs
2) sanctions are discretionary
3) safe harbor- 21 days to fix problem, then can file motion
4) rule applies to every paper filed in court other than discovery

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24
Q

what are the requirements for a complaint under rule 11?

A

1) SMJ
2) short and plain statement of claim
3) demand for relief

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25
Q

3 rules from Twiqbal when reviewing a complaint

A

1) ignores conclusions of law and focuses on the alleged facts
2) facts must support plausible claim, not just a possible claim
3) to determine plausibility the judge uses their own experience and common sense (subjective)

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26
Q

Rule 12

A

defenses

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27
Q

what two options does rule 12 give Ds?

A

1) file a responsive pleading (answer)
2) file a motion that raises one or more of the defenses and objections set out in that rule (7 defenses in rule 12(b) can be raised if answer is not waived)

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28
Q

under rule 12 what is motion for judgement on the pleadings?

A

requires an answer to be filed first and allows for resolution of an issue or entire case prior to discovery.

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29
Q

when is a rule 12 motion for judgement on the pleadings appropriate?

A

1) when D has not offered a legally sufficient denial in his answer
2) if there’s some legal bar to recovery
3) if it’s clear after the complaint that the case will turn on a pure question of law (no facts)

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30
Q

how many days does rule 12 give to respond to a complaint?

A

21 days (time may be extended by court order)

31
Q

can a plaintiff amend a complaint under rule 12?

A

Yes but only once as a latter of course at any time before a responsive pleading is served

32
Q

if D moves under rule 12 and the courts denies the motion what happens?

A

D must file an answer or plead otherwise in a response

33
Q

what is an answer?

A

a kind of pleading and governed by rule 8 and 10

34
Q

what are the 2 ways that a D can respond to a complaint by:

A

1) make a motion (not pleadings/request for court order0

2) answer (pleading)

35
Q

what are the 7 defenses under rule 12 that a D can raise to dismiss the suit?

A

1) lack of SMJ
2) lack of PJ
3) improper venue
4) improper process (service)
5) failure to state a claim
6) failure to join an indispensable party under rule 19

36
Q

what type of allegations are strike under rule 12?

A

scandalous or irrelevant allegations

37
Q

how long does a D have to respond to a complaint

A

21 days after SOP.

38
Q

what does D risk if they don’t respond in 21 days?

A

default judgement.

39
Q

Rule 13

A

counterclaims/crossclaims

40
Q

rules of a crossclaim 13(g)

A

1) between co- D’s or Co-p’s

2) has to be permissive (same transaction or occurrence)

41
Q

what rule governs counter and cross claims?

A

19 and 20

42
Q

what does joinder by def usually mean?

A

counterclaims are involved

43
Q

what are the two types of counters claims?

A

1) compulsory 13(a) - if the party that has the claim doesn’t assert it, they lose it. Use it or lose it. Arises from the same occurrence or transaction.
2) permissive - you may assert in same claim, but don’t have to

44
Q

can there be compulsory crossclaims?

A

no

45
Q

what happens once a proper crossclaim is asserted?

A

rule 18(a) kicks in, allowing them to add any unrelated claim.

46
Q

Rule 14

A

Impleader/3rd Party

47
Q

what is impleading?

A

when additional parties are around into the case by the defendant

48
Q

once a third party is brought in under rule 14 what happens?

A

the P can bring claims against the 3rd party defendant and the 3rd party D can assert counter-claims against P

49
Q

what does rule 14 provide?

A

a vehicle - by third party plaintiffs, must have substantive law to sue third party D

50
Q

Rule 15

A

Amending complaint/summons

51
Q

what are the rules of amendment under rule 15?

A

1) P has right to amend within 21 days after D serves first Rule 12 response
2) D has the right to amend once within 21 days after serving answer
3) if you don’t have time to amend, you can ask for leave to ament or stipulate with other party to allow amendment

52
Q

what is variance (rule 15)?

A

evidence at trial doesn’t match what was pleaded. Can only come up in trial.

53
Q

what happens when there’s variance (15)?

A

1) other party will object to variance, then evidence is not admissible
2) or other party will not object and evidence will come in and act as if evidence was pleaded and even amend to include evidence

54
Q

what happens in regards to amendments after the SOL runs out?

A

you can relate the amendment back to the filing of summons

55
Q

what is involved in relating a filing back?

A

1) add a claim - much arise out of the same conduct, transaction, or occurrence as the original complaint
2) change D - if P sued the wrong D, but the right D knew about it

56
Q

what are supplemental pleadings (15)?

A

add something that happened after the case was filed (must ask for permission of the judge)

57
Q

Rule 16

A

pre-trial conferences/scheduling/sanctions

58
Q

what does rule 16 do?

A

1) case management rule
2) strengthen a judge’s authority
3) encourages the judges to facilitate settlements
4) Judge MUST play a role, not anyone else

59
Q

Rule 18

A

joinder of claims

60
Q

what type of claims does the plaintiff join claims under rule 18?

A

they can join as many as they want and they don’t have to be related

61
Q

what do you still need for the plaintiff to join claims under rule 18?

A

SMJ

62
Q

Rules for plaintiffs joining claims under rule 18

A

1) 1 P v. 1 D
2) can assert any claims under joinder that they have against D
3) once you assert a cross-claim, you are a claimant
4) permissive rule

63
Q

what are the guidelines for crossclaims?

A

the parties need already be in the claim on, on the same side of the V and must arise out of the same transaction or occurrence.

64
Q

Rule 19

A

necessary parties

65
Q

characteristics of rule 19

A

1) additional parties who must be joined

2) nonparty absence is necessary

66
Q

what are 3 circumstances when an absentee is necessary/important under rule 19?

A

1) if they’re absence in ct cannot accord complete relief between existing parties
2) where the absentee claims an interest related to the case and its interest will be harmed if not joined (opposite of 1)
3) where if the absentee isn’t joined then 1 of the parties has a significant risk of being subject to 2 different standards (duplicative or inconsistent obligations)

67
Q

what are 2 scenarios under rule 19 where a court says a person needs to be joined but impractical because of no PJ or SMJ

A

1) allow existing parties to continue with case even though the court deemed the absentee “necessary”
2) dismiss case - deeming the absentee as “indispensable”

68
Q

when will a court never dismiss a case under rule 19?

A

if P can get relief nowhere else.

69
Q

rule 20

A

permissive parties

70
Q

characteristics of rule 20

A

1) additional parties who may be joined (permissible)
2) allows P to structure a multi-party case
3) Ps can also join with other Ps against D or other D’s and same for D.

71
Q

what are the requirements for rule 20?

A

1) claims arise from the same transaction or occurrence

2) MUST allege/assert common question of law or common facts

72
Q

rule 21

A

misjoinder/non joinder

73
Q

what is misjoinder (21)?

A

adding the wrong person is not a basis for court to dismiss suit

74
Q

if tortfeasors are joined as defendants how should they be joined?

A

under rule 20, they are never necessary

Civil Procedure (8 decks)

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