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Civ Pro 2 > Topics 1-5 MCA 1 > Flashcards

Topics 1-5 MCA 1 Flashcards

1
Q

Hard damages

A

reasonable certain or not hard to figure out damage (money)

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2
Q

soft damages

A

dont have to be specific, easily calculated, pain and suffering

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3
Q

statutory damages

A

prescribed by a statute

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4
Q

damage caps

A

limits awards for pain and suffering

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5
Q

liquidated damages

A

contracts, state what damages are appropriate, enforced when reasonable

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6
Q

compensatory damages

A

lost wages, give people what they suffered

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7
Q

punitive damages

A

not always avaliable, punishment, capped by fed gov. cant be more than 10% of the compensatory amount.

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8
Q

specific remedies

A

when money isnt going to work

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9
Q

declatory relief

A

title 28 section 2201

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10
Q

title 28 section 2201

A

actual cases or contoversies, concrete relief hasnt happened yet, NO HYPOS, threat of danger at your doorstep.

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11
Q

provisional remedies

A

relief given while case is still going on

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12
Q

two kinds of provisional remedies

A

PI and TRO

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13
Q

Rule 65c party seeking PI or TRO must provide…

A

the party seeking PI or TRO must provide sufficient security to cover the damages sustained by any party found to have been wrongfully enjoined

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14
Q

65a PI issue

A

court may issue PI only on notice to adverse party

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15
Q

Things court will look at when giving out PI

A

Likelihood of success on the merits
Likelihood of suffering irreparable harm if the injunction is not granted
The balance of equities are in favor of granting the injunction; and
The injunction is in the public interest

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16
Q

65b TRO

A

TRO, court may issues a TRO without oral notice to the adverse party or its attorney only if
Specific facts in a affidavit or verified complaint clearly show immediate and irreparable injury will result before the adverse party can be heard and
The movants attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

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17
Q

English Rule

A

losing side pays judgement own cost and fees and the fees of winning side

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18
Q

american rule

A

losing party pays judgment but both parties pay their own attorney fees

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19
Q

54d costs

A

unless a federal statute, these rules or court order provided otherwise, costs other than attorney fees should be allowed to prevailing party

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20
Q

prevailing party

A

party that obtains relief that materially alters its legal relationship with its other parties

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21
Q

does cost equal fees?

A

NO

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22
Q

28 USC 1920 elements

A

Fees of the clerk and Marshall
□ Fees for transcripts necessarily obtained for use in the case
□ Witness fees
□ Fees for copies where necessary obtained
□ Docket fees
□ Compensations for court appointed experts Very rare.
(Modified version of American rule)

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23
Q

68(a) OOJ

A

sets out definition of an OFFER OF JUDGMENT and what happens if one accepts

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24
Q

68b overall description OOJ

A

describes the effect of NOT RESPONDING TO A VALID OFFER of judgment

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25
Q

68c epochal provisions OOJ

A

special provisions for OOJ made after a determination of liability but before the amount of liability has been determined

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26
Q

68d OOJ consequences

A

describes the CONSEQUENCES of an unaccepted OOJ

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27
Q

68a - elements OOJ

A

at least 14 days before trial, party defending against a claim may serve on the opposing an offer to allow judgment on specified terms with the cost then occured

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28
Q

68a- acceptance rulesOOJ

A

within 14 days after being served the opposing party serves written notice of acceptance

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29
Q

68a - after acceptance OOJ

A

either party can file the offer and the acceptance and the clerk must enter the judgement

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30
Q

68b elements OOJ

A

unaccepted offered withdrawn but it does not preclude later offer

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31
Q

68d elements OOJ

A

if the judgment that the offer finally obtains is not more favorable than the unaccepted offeror, the offeree must pay the cost incurred after the offer was made.

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32
Q

do all offers to settle count as an OOJ

A

nope

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33
Q

what is a motion

A

a written request that the court issue an order.

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34
Q

what is a pleading

A

a very specific type of filing that is used to establish the parties’ claims and defenses

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35
Q

documents that are pleadings

A

Complaint
Answer to a Complaint
Answer to a Counterclaim

Answer to a Crossclaim
Third-party Complaint
Answer to a Third-Party Complaint
Reply to an Answer (but only if the court orders one)

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36
Q

rule 3

A

A civil action is commenced by filing a COMPLAINT with the court

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37
Q

8a elements complaint

A
  1. A short statement of the grounds for the court’s JURISDICTION
  2. A short and plain statement of the CLAIM showing that the pleader is entitled to relief
  3. A demand for the particular RELIEF sought
38
Q

rule 9

A

imposes special pleading requirements in certain kinds of cases (e.g., fraud)

39
Q

rule 10

A

governs the form of complaints

40
Q

rule 11 overview ethical obligation

A

imposes ethical obligations upon the attorney submitting a complaint

41
Q

rule 12b (dismissial)

A

permits courts to dismiss a complaint if is legally deficient

42
Q

Fact pleading

A

some states, a statement of the facts constituting the cause of action

43
Q

Notice pleading

A

FRCP, a short and plain statement of the claim showing that the pleader is entitled to relief

44
Q

who is in charge if deciding the facts are plausible

A

the judge

45
Q

what is plausible statand

A

more than a possibility less than a probability, reasonably inference that D is liable.

46
Q

11a ethical obligation

A

Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name

47
Q

11b ethical requirement

A

This means you MUST have done both of these before you file a complaint:
An investigation of the facts to ensure the factual allegations in the complaint have evidentiary support; and
Sufficient legal research to ensure that your legal contentions are warranted by existing law or a nonfrivolous argument for modifying the law.

48
Q

11c2 eithical ramifications

A

If you believe the other side has engaged in conduct that violates Rule 11(b), you must follow a very specific procedure to bring that before the court.
You must serve on the other side (but not file with the court) a separate motion (it can’t be combined with other motions) specifically stating what they have done wrong
You must wait 21 days to see if they withdraw the offending motion (safe harbor provision)
If they refuse to correct the alleged error, then you may file the sanctions motion with the court
If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.

49
Q

55a defaults

A

Where a party against whom a judgment for affirmative relief is sought has failed to plead … the clerk must enter the party’s default

50
Q

is a default the same as a default judgment

A

no, Obtaining a default is simply first step in ultimately obtaining a default judgment
Default determines that P has won but not how much P has won

51
Q

12a pre answer motion

A
  1. A defendant must serve an answer:
    within 21 days after being served with the summons and complaint; or
    if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent …
  2. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
    if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action
52
Q

what is the remedy for most of the 12b defenses

A

dismissal of action

53
Q

what defenses can be raised by pre answer motions

A

Lack of subject matter jurisdiction
Lack of personal jurisdiction
Improper venue
Insufficient process
Insufficient service of process
Failure to state a claim
Failure to join a required party

54
Q

how do you make a pre answer motions

A

Must be made before the answer is due. Rule 12(b).
Can generally only make one pre-answer motion. Rule 12(g)(2).
Multiple Rule 12(b) defenses must be combined into a single pre-answer motion. Rule 12(g)(1) & 12(g)(2).

55
Q

12h1 waiver defense

A

(1)A party waives any defense listed in Rule12(b)(2)–(5) by:
(A) omitting it from a motion in the circumstances described inRule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed byRule 15(a)(1)as a matter of course.
USE THEM OR LOSE THEM

56
Q

12h2 waiver defense

A

Failure to state a claim upon which relief can be granted, to join a person required byRule 19(b), or to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered underRule 7(a);
(B) by a motion underRule 12(c); or
(C) at trial.

57
Q

12h3 waiver

A

(3)If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

58
Q

how many pre answer motions can you file

A

one

59
Q

how many days do you have to answer the complaint

A

14 days

60
Q

12e Motion for a More Definite Statement

A

Used to obtain more info when P’s claim is too “vague and ambiguous” for D to reasonably respond.

61
Q

12 f Motion to Strike

A

The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter

62
Q

12c Judgment on the Pleadings

A

After the pleadings are closed – but early enough not to delay trial – a party may move for judgment on the pleadings. Brought after all the pleadings have been filed. If the uncontested pleadings demonstrate that one or more of the parties is entitled to judgment, Rule 12(c) is the way to go.
If there are contradictory allegations about key questions, then judgment on the pleadings is not appropriate.

63
Q

12d Matter Outside the Pleadings

A

“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”

64
Q

8b1 Content responding to complaint

A

In responding to a complaint, a party must:
Admit or deny the allegations in the complaint
State in short and plain terms their defenses to each claim

65
Q

are counter claims required

A

They are not required by Rule 8.
But may be required by Rule 13 (see Rule 13(a)(1) compulsory counterclaims).
And can be made even if not required (see Rule 13(b) permissive counterclaims).

66
Q

what must a counterclaim contain

A

Counterclaims are claims for relief that must comply with Rule 8(a)!
Thus, they need: (1) a jurisdictional statement; (2) a short and plain statement of the claim; and (3) a demand for relief.

67
Q

does the complaint and answer have to have the same numbering

A

yes

68
Q

8b2

A

A denial must fairly respond to the substance of the allegation

69
Q

8b6 - failing to deny

A

An allegation – other than one relating to the amount of damages – is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided

70
Q

8b3

A

General denial: A party that intends in good faith to deny all the allegations of a pleading – including the jurisdictional grounds – may do so by a general denial. ALMOST NEVER APPROPRIATE.

71
Q

8b4

A

Specific Denial - A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest

72
Q

8b5

A

lack of knowledge - If you “lack knowledge or information sufficient to form a belief about the truth of an allegation,” you can state this and it has the effect of a denial.
But remember Rule 11 – you must make a “reasonable inquiry” before submitting a pleading.

73
Q

when can you use 8b5

A

after making a reasonable inquiry, you still don’t have enough knowledge or information to know whether an allegation is true.

74
Q

8c

A

affirmative defense: Contributory negligence
Release
Fraud
Statute of limitations

75
Q

can the defense be related to the allegations in the complaint

A

It doesn’t have to. A defense can be based on facts that are completely separate from those raised by P in the complaint (e.g., statute of limitations).

76
Q

who bears the burden proving allegation in the complaint? and the defenses?

A
  1. plaintiff. 2. defendant
77
Q

7a(2)

A

D must respond to the Complaint.

78
Q

7a7

A

P cannot respond to an Answer unless the court orders a Reply.

79
Q

7a3

A

But, if D files a Counterclaim, then P must Answer the Counterclaim.

80
Q

15a1

A

You may amend your pleading once as a matter of course (Rule 15(a)(1)) either
Within 21 days after service of it; or
(if the pleading is one to which a responsive pleading is required) within 21 days after the responsive pleading or a pre-answer motion is filed, whichever is earlier

81
Q

what does 15a1 mean for complaints

A

Since responsive pleadings to complaints are required (the answer is the responsive pleading), if you want to amend your complaint without seeking permission you must do it within 21 days of the answer or a Rule 12 pre-answer motion, whichever is earlier. ``

82
Q

what does 15a1 mean for answers

A

Since a responsive pleading to an answer is generally not permitted (the responsive pleading to an answer would be a Reply, but they are not allowed without a court order), you must amend your answer within 21 days of serving it.

83
Q

15a2

A

“In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.”

84
Q

Leave to amend will be denied if the party opposing the amendment can show

A

Bad faith
Undue delay; or
Prejudice

85
Q

15b2

A

When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated as if raised in the pleadings

86
Q

15b1

A

Even if you object to the new theory at trial, the court may still permit the amendment if:
“the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits.

87
Q

what is the default position in 15b1

A

amendments are permitted.

88
Q

who bears the burden in 15b1

A

The party opposing the amendment bears the burden of showing why an amendment should not be permitted.

89
Q

15c1b

A

An amendment “relates back” to the date of the original pleading when:
“the amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set out – or attempted to be set out – in the original pleading”

90
Q

what does relate back to means

A

It means the amendment is treated as having the filing date of the original pleading, rather than the filing date of the amended pleading.

91
Q

What is the Moore framework

A

Moore focuses on the issue of whether the first claim put D on notice about the substance of the second claim.

92
Q

what is the bonerb framework

A

Bonerb focuses on the question of whether the second claim arises out of the same transaction/occurrence as the first claim.

Civ Pro 2 (8 decks)

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