All Deck Flashcards
Rule 11 Sanctions
claims w/o factual basis are not allowed, can impose sanctions to deter; you are certifying that facts have evidentiary support; on both law and facts, you have to do a reasonable inquiry under the circumstances that law supports case or evidentiary support.
Hunter v. Earthgrains
Title VII case. Judge sua sponte sanctions Hunter, but she challenging bad law and sister circuit courts ruling differently.
R - Losing legal position is not itself sanctionable
O-Rourke v. Dominion Voting Systems
election fraud conspiracy in the swing states leading to infringements of all kinds of rights.
R - Sanctionable. No good faith attempt to substantiate claims. Even copied from other cases. Even made jurisdiction case. Grounds for serious sanctions to deter future cases.
Safe Harbor Provision
Motion for sanctions must not be filed if it is appropriately corrected within 21 days after service (gives counsel 21 days to fix the problem, before filing motion for sanctions). -> purpose is deterrence not compensation
CODE PLEADING
requires that “ultimate facts” be alleged for every element of the cause of action. (CA is a code pleading state (and NY, Texas, and Illinois).
CCP 425.10 - code pleading pleadings standard
(a) A complaint or cross-complaint shall contain both of the following:
(1) A statement of the facts constituting the cause of action, in ordinary and concise language.
(2) Demand for judgment for relief to which pleader claims to be entitled. If money or damages are demanded, amount demanded shall be stated.
RULE: A complaint must allege the material, essential, and ultimate facts upon which P’s right of action is based; When a court considers a demurrer/MTD, it credits all the factual allegations as true.
Ultimate Facts – who, what, where, how? / in a skeletal version, don’t need all the evidence.
Gillispie v Goodyear Service Stores
- D trespassed upon premises occupied by P and assaulted her, P sued.
- Judgments sustained D’s demurrers are affirmed b/c P’s Complaint does not state facts sufficient to constitute any cause of action.
- P does not allege in what manner D is indebted to P,
- P’s allegations do not disclose what occurred, when it occurred, who did what. Complaint is full of legal conclusions.
RULE: A complaint must allege the material, essential, and ultimate facts upon which P’s right of action is based
Nayab v. Capital One Bank
- Nayab appeals dismissal of FCRA claim for failure to state a claim.
- We accept factual allegations as true and view in most favorable to plaintiff, but still did not even state a claim. If everything you said is true, could you recover?
R - must state a claim for relief
Federal Complaint Pleading Standard
Give defendant notice of what the claim is; idea was simplicity and brevity; complaint must include a short and plain statement of the claim.
RULE (FRCP 8(a))
Must contain more than a statement of facts that merely create a suspicion of a legally conceivable right of action; look through complaint for legal conclusions and take them out and then look at what is left and ask yourself if factual allegations state a plausible claim.
A party must plead enough facts to make its claim “plausible” -> party had to allege enough facts to show that it was more than possible, but not necessarily probable.
Conley v. Gibson
1957 relaxed pleading standard. Twombly supersedes
Board of Harbor Commissioners
SICO filed for More Definite Statement on grounds that complaint was vague and ambiguous. Denied - if Rule 8 satisfied and notice of a claim, then 12e is denied
Swierkiewicz v Sorema
- Hungarian filed age and race discrimination
- President wanted to “energize” dept.
- P’s complaint detailed the events leading to his termination, provided relevant dates, included the ages and nationalities of at least some of the relevant persons involved with his termination
- (they replaced him with a younger guy who was French and only had one year of experience.)
- Court held that it was possible to infer discrimination from these allegations.
R “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Bell Atlantic Corp. v Twombly
- P sued seeking damages alleging that D had conspired to restrain trade in two ways: engaged in parallel conduct and agreed not to compete with each other
- Bells not competing - Everything alleged is consistent with normal business practices so no agreement (Sherman Act)
- CEO competing easy dollar
- Twombly argued that from the two courses of parallel conduct, an agreement to restrain trade could be inferred.
Ashcroft v Iqbal
- P was arrested in U.S. and detained by federal officials.
- Alleges Ashcroft and Mueller, were chief architect, responsible for harsh conditions of confinement on account of his race, religion, or national origin.
- Discrimination is not plausible b/c policy was singling out people who were possibly connected with the terrorists.
- There is an obvious more plausible explanation.
- Qualified immunity 2 step test -
R - Ignore conclusory allegations, then see if the rest is more plausible than “obvious alternative explanation”. *Standard higher for qualified immunity cases.
Erickson v Pardus
- P was receiving Hep C treatment.
- Prison officials stopped P’s treatment due to syringe missing.
- P would have to wait 18 months before receiving treatment.
- P alleges cruel and unusual punishment.
- P alleged removal of Hep C treatment was endangering his life.
R - Pro se complaints must be held to less stringent standards than formal pleadings drafted by lawyers; Ps allegations were sufficient. Anything attached to complaint counts.
Palin v. NYT
- NYT posted article about Palin’s PAC map with crosshairs and said connected to shootings of democratic political officials.
- Palin argues that guy was politically motivated, was the editor so should have known, and had URL link.
- Test is whether complaint is plausible, not less plausible than an alternative expl. (Iqbal - but Iqbal maybe about qualified immunity)
Department of Homeland v Regents
- Regents sued DHS for rescinding DACA.
- Regents alleged that acting secretary of DHS violated Administrative Procedure Act by failing to adequately address important factors bearing on her decisions.
- Unusual timing of the rescinding.
- Court concludes that DHS violated APA in rescinding DACA but precludes Regents from seeking claim under the equal protection clause.
R - still plausibility I guess?
Trump v. Maher
Transcript. Orangutan. Birth Certificate. Trump withdrew complaint because clearly a joke - did not claim plausible things
McCormick v Kopmann
Lewis Mccormick was killed when a truck operated by D collided with his car.
- widow sued Kopmann and the tavern owner.
- Widow sued on two counts: Count I – alleging that Kopmann negligently drove his truck across center line and collided with Mccormicks automobile and Count IV – alleged that Hills sold alcoholic beverages to Mccormick which rendered him intoxicated and b/c of intoxication he drove car in a manner to cause a collision.
- D moved to dismiss b.c claims were contradicting.
- R - Court denied motion to dismiss, b/c claims may be made in the alternative regardless of consistency.
Colgate v JUUL Labs
FRCP 9 - who, what, how, when and where.
- Colgate suing claiming JUUL is misleading people into thinking JUUL is better than cigarettes.
- JUUL promoted that it is safer and less addictive, but it is not.
- Most of the P’s were dismissed b/c they did not specify the deceptive ads they saw (the where).
R - must state fraud with particularity (FRCP 9)
Types of Complaints
Complaint - P sues D
Counter-Complaint - D sues P
Cross-Complaint - D1 sues D2 (both party to case)
3rd Party Complaint - D brings in another D and say they are responsible
Joinder of Claims
a party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party. (it’s the wild wild west with claims)
Joinder of Parties
FRCP 20
Plaintiffs who may join or may be joined if:
- they assert right to relief
- arises out of the same transaction or occurence
- common question of law or fact
Misjoinder of Parties
FRCP 21
Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.
Insolia v Philip Morris, Inc.
- P’s are cigarette smokers and their spouses, filed suit against D’s, tobacco manufacturers.
- D seeks to sever the claims of the three sets of plaintiffs into three separate actions.
- Court concludes these claims don’t arise out of the same transaction b/c P’s were smoking at different ages, smoking different brands, quit for different reasons and under different circumstances, 30-year span, would cause jury confusion = severs.
FRCP 23
Class Action
(1) NUMEROSITY: the class is so numerous that joinder of all members is impracticable; (rule of thumb: class members of 40 enough to satisfy numerosity).
(2) COMMONALITY: there are questions of law or fact common to the class;
(3) TYPICALITY: the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) ADEQUACY: the representative parties will fairly and adequately protect the interests of the class.
Walters v Reno
- P filed an action against the government about INS’ lack of notice before bringing a document fraud action and deportation proceedings against them.
- Some Ps received fair notice and committed document fraud.
- Even though some members received fair notice, the fact that there are a few exceptions does not mean there are no common questions of law or fact.
- Even though some of the class representatives did commit fraud, the case is about notice, they all got notice, so the reps can still vigorously protect the interest of the class. (Adequacy)
General Telephone Company v Mariano & Falcon
- Falcon originally brings suit against his employer alleging that he was not promoted because he is a Mexican American, white guy got job.
- He also brings a class action on behalf of Mexican American applicants for employment who were not hired.
- Falcon’s claim is not typical b/c he does not have a hiring claim like the other members of the class.
- Falcon did not satisfy adequacy b/c he did not have a hiring claim and, thus, did not represent the interests of the class.
- P approached individual and class claims differently.
- Class certification is reversed.
Extra Credit for Class Actions
- No one does b(1) class actions
- b(2) class actions are only for injunctions (diff b/w b(2) and b(3))
- if seeking money damages, have to do it under b(3)
- b(3) class actions have series of other boxes you must check:
o common Q has to predominate over the differences.
o Court has to decide whether class action is superior way to adjudicate. - How to bring class action:
o Complaint has to plead the class (Twombly comes into play).
o Certifying class action – by motion or ask judge to decide to go
General Jurisdiction v. Limited Jurisdiction
- Courts of general jurisdiction can hear any case
- Courts of limited jurisdiction may only hear specific types of cases.
- Federal courts are NOT courts of general jurisdiction (there are no courts of gen jdx at federal level.
RULE 28 USC Sec. 1332 (Diversity Jurisdiction)
involving citizens of different states, citizens of a state and citizens of a foreign state, a foreign state as P and citizen of a state AND the amount in controversy exceeds $75,000; there must be complete diversity at the time of filing of the complaint (but congress can change this, it is not a constitutional requirement).
Exception - divorce, probate, big disasters
Domicile
permanent home, you only change domicile if you move, if you intend to remain there permanently.
Factors to look at :where you vote, taxes, employer, property, etc.
Corporate General Jurisdiction
Every state in which it is incorporated AND the state where it has its principal place of business (nucleus of business, headquarters, leaders).
Mas v Perry
- P’s Mr. and Mrs. Mas sued Perry (Louisiana), who they rented an apartment from, b/c they discovered their bedroom and bathroom contained “two-way” mirrors
- They at school in LA, Mrs. Mas is domiciled in Mississippi. Mr. Mas is citizen of France. While both of them moved, they didn’t intend to establish new domicile.
- Therefore, there is complete diversity. Amount in controversy is determined by the amount claimed in good faith (claimed over $ amount).
Holley v. Techtronic
- P is citizen of CA and “husband is his spouse”.
- Court says bunch of things for domicile that establish your main cave.
- Enough for diversity
RULE 28 U.S.C. 1331 - Federal Question Jurisdiction
District courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U.S. Concurrent jurisdiction over federal claims in state court.
(Well-Pleaded Complaint Rule – Ps affirmative claim for relief has to be based on federal law.)
Note: You can litigate almost all federal questions in state court.
Louisville & Nashville R.R. v Motley
- Motley’s had annual passes resulting from injuries by RR.
- On Jan 1 1907, D declined to renew passes b/c act of congress passed in 1906 forbids giving of free passes.
- Motley’s claim is a breach of contract claim.
- Court concludes it is not a federal question case b/c original cause of action doesn’t arise under
constitution. Not enough that P alleges anticipated defense to his cause of action and asserts that defense is invalidated by the US Constition
Supplemental Jurisdiction
In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the U.S. Const. Such supplemental jurisdiction shall include claims that involve joinder or intervention of additional parties;
- letting you bring state law claims into federal case and lets you bring in additional parties arising out of the same transaction.
- cannot bring in parties that would destroy diversity
District Court can refuse a state law claim - when?
Rule 28 USC sec 1367(c): the district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if:
(1) the claim raises a novel or complex issue of State Law
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction (state law predominates).
(3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
Responding - types of responses
(1) Do nothing – Default
(2) Attack – Motion to dismiss under Rule 12(b)
(3) Answer – Rule 8(b)(c)(d)
FRCP 12(a) - Time to Serve a Response
(i) within 21 days after being served with the summons and complaint;
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the U.S.
Default
RULE FRCP 55(a)
Entering a Default: when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.
Default Judgment
(1) By the clerk. If the P’s claim is for a sum certain, the clerk—on the P’s request, with an affidavit showing the amount due – must enter judgment against a D who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
(2) By the court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a fiduciary who has appeared. If the party against whom a default judgment is sought has appeared that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting
(B) determine the amount of damages
(C) establish the truth of any allegation by evidence, or
(D) investigate any other matter.
Motion to Set Aside Default (FRCP 55)
Motion to set aside default. Three factors for deciding whether there is “good cause” for relief from default:
(1) whether P will be prejudiced
(2) whether D has a meritorious defense
(3) whether culpable conduct of D led to default (*state of culpability will probably depend on how serious prejudice is and whether defense is meritorious; requires greater showing of fault if there is little to no harm to the other party)
Prove
Me
Culpable
Shepard Claims Service Inc v William Darrah & Associates
- D’s attorney’s secretary secured extension for filing an answer.
- D filed no answer claiming misunderstanding from atty’s secretary re: extension (45 days in addition to normal period of 30 days).
- P asked clerk to enter default.
- D files a notice of retention, motion to set aside default, then Answer, crossclaim, and discovery.
- D also files a Rule 60 Motion to set aside default judgment, but default judgment had not been entered yet.
- Denial of Motion to set aside default was reversed b/c P suffered no prejudice by reasons of the tardy pleadings and D presented a meritorious defense in its Answer. D’s counsel’s conduct was inexcusable and careless but NOT culpable.
RULE FRCP 60. Motion to Set Aside Default Judgment
Courts would be more reluctant to let you out of default judgment b/c you messed up by not replying, missed notice of default and now you are at judgment. - Will need more persuasion as to why you let it get to this.
Grounds for relief from a final judgment:
(1) mistake, inadvertence, surprise, or excusable neglect
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial Rule 59(b)
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party
(4) the judgment is void
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Mother Never Found Victor's Stash of Antidotes
Subject Matter – Removal
RULE: 28 USC 1441(a): except as otherwise expressly provided by act of congress, any civil action brought in a state court of which the district courts of the U.S. have original jurisdiction, may be removed by the D or the D’s, to the district court of the U.S. of the district and division embracing the place where such action is pending.
Why might you want to file in federal v state?
- State courts use state rules even if substantive law is federal
o Ex: state discovery is more lenient than federal rules. - juries could be more favorable
Citizen Defendant Rule (28 USC 1441(b))
Removal based on diversity of Citizenship: A civil action otherwise removable solely on the basis of diversity (and there is no Fed Q), may not be removed if any one of the defendants is a citizen of the State in which such action is brought.
Time Limit for Removal
Timing and Unanimity (28 USC 1446): 30 days to remove after receipt by D, if not you waive it;
- if multiple D’s and served at different times, last served D gets to decide whether to remove or not,
- and it has to be unanimous. Each D gets option to remove, but has to be unanimous.
Jurisdictional Spoiler
Adding a defendant who destroys complete diversity OR add a citizen defendant. Court can ignore if good reason to believe just a spoiler
Improper Removal/Remand
If improper, can ask to remand case back to state court within 30 days (unless there is no subject matter jurisdiction). Once remanded, usually no way to reverse that.
Types of Motions
Notice of Motion Memo of Points and Authorities (legal brief) Affidavits or Declarations (evidence) Response Memo of Ps and As Affidavits or Declarations Reply Memo
Responding – Attack
Three Principal Defenses
- It didn’t happen that way (denial)
- the case described in your complaint is flawed
- something else happened that overrides your claim (affirmative defense)
FRCP 12(b) Motions
every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion (a motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed):
(1) lack of subject-matter jurisdiction (FAVORED)
(2) lack of personal jurisdiction (DISFAVORED)
(3) improper venue (DISFAVORED)
(4) insufficient process (DISFAVORED)
(5) insufficient service of process (DISFAVORED)
(6) failure to state a claim upon which relief can be granted; and (FAVORED)
(7) failure to join a party under Rule 19 (FAVORED)
DISFAVORED 12b defenses
failure to raise them in the first responsive paper filed means they are gone. You waive them by failing to assert in your Answer or by pre-answer motion. (don’t need a 12(b) motion as long as you assert it in your Answer).
FAVORED 12b defenses
you can raise at any time.
12(c) Motion for judgment on the pleadings
12(c) Motion for Judgment on the Pleadings
o Getting a resolution of a defense at/after answering
12(d) motion matters outside the pleading
12(d) Matters outside the pleading
o Getting a resolution of a defense (or denial) after answering
12(e) More definite statement
12(e) More definite statement
o Unintelligible complaint; need more details
12(f) Motion to Strike
The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party.
Due Process Clause
Neither the federal government nor any state may deprive any person of life, liberty, or property without due process of law.
Personal Jurisdiction - “catching”
Catching them in a state to be sued in that state. Jurisdiction by “catching” endures, even if there are no other contacts (still works)
Long Arm Statutes
ability of local courts to exercises jurisdiction over out of state defendants.
CA has made personal jurisdiction powers as broad as constitution allows.
Personal Jurisdiction
(1) what does the state’s long arm statute authorize?
(2) what are the federal/state/ due process limits that apply here? (Would exercising that jurisdiction comply with due process?) -> is there general or specific personal jurisdiction?
If you see a person being “haled” into court, ask:
- Are they at home here?
- If not, do they have enough contacts with the state to make it “fair” to make them defend?
- Have they “availed” themselves of the state?
- Is it reasonable to make them defend (burden on D, and import to P/witnesses)?
- If so, does the claim relate to the contacts that show availment?
Burger King v Rudzewicz
- Burger king wants damages from D’s breach and wants to be able to sue in Florida.
- D believes they don’t have minimum contacts to be haled into court in Florida. Court holds that D does have minimum contacts b/c
- he established a substantial and continuing relationship w/ BK’s Miami headquarters (20 yrs),
- received fair notice from the contract documents (contract says Florida) and
- the course of dealing/negotiations that he might be subject to suit in Florida (payments were sent to Florida, ongoing interaction w/ Florida headquarters.
5 Factors that help resolve this question of reasonableness include
- the defendant’s burden if jurisdiction is imposed,
- the forum state’s interest in imposing jurisdiction,
- the plaintiff’s interest in obtaining relief,
- the interstate judicial system’s interest in obtaining efficient resolution of controversies, and
- the furtherance of fundamental substantive social policies.
World-Wide Volkswagen v Woodson
Respondents purchased a new Audi from petitioner in NY. Moving to AZ but car crash in OK.
- Respondents sued in Oklahoma claiming their injuries resulted from defective design and placement of the Audi’s gas tank and fuel system.
- Court holds that there is no personal jurisdiction in Oklahoma b/c
- Volkswagen conducted no activity in Oklahoma whatsoever
- no close sales and no services performed in OK,
Respondents seek to base jurisdiction on the isolated occurrence, foreseeability alone is not sufficient. Volkswagen did not avail themselves of any of the privileges and benefits of OK law. Fact that a vehicle was put into the “stream of commerce” is not enough.
Ford Motor Co. v. Montana
Car accidents, not in Montana but Ps suing in Montana.
Ford markets (advertises), sells (big resale market), and services specific models in Montana demonstrating a willingness to sell to and serve Montana customers.
- enough for personal availment
Specific vs. General Jurisdiction
Specific Jurisdiction – the specific claim arises out of or related to the activity that establishes your contracts with the state.
General Jurisdiction – it seems fair to hold you to account for any claim against you in your home state.
BNSF Railway v. Tyrell
Railway workplace injury. Injuries did not happen in Montana. BNSF a DE corp. With PPB in Texas. 2,000 miles of track in Montana (6% of nationwide) and 2,100 employees (5% of workforce of Montana), but Court found activities are not enough for general jurisdiction
Rule - PPB and where management are
Kamen v. AT&T
Disability discrimination claim.
R - Permitted discovery of facts to demonstrate jurisdiction, at least where the facts are peculiarly within the knowledge of the opposing party.
R - Cannot look at evidence in light of a 12b6 motion, if does then has to turn it into a MSJ
FRCP 12(b)(5) – Motion to dismiss for insufficient service of process
FRCP 4(e) – deliver copy of summons and complaint to individual personally, or leaving a copy at individuals dwelling or with someone of suitable age and discretion who resides there or, deliver to agent
Must be:
A third party serving, recipient over 18 and responsible. Can’t serve at a person’s office.
Failure to Waive
If a D located within the U.S. fails, without good cause, to sign and return a waiver requested by a P located within the U.S., the
court must impose on the D:
(A) the expenses later incurred in making service; and
(B) the reasonable expenses, including atty’s fees, of any motion required to collect those service expenses.
Considering a motion to dismiss
Judge can only look at the complaint. Cannot hold a hearing to determine plausibility like in Palin v. NYT
FRCP 12(c) Motion for Judgment on the Pleadings
When and why would you do this?
- After the pleadings are closed—but early enough not to delay trial – a party may move for judgment on the pleadings.
- if you didn’t waive the disfavored defenses or raise them in a Rule 12(b) motion. (e.g., raises defenses on Answer, but didn’t do a 12(b) motion, you can use 12(c). - as long as you put defenses in Answer, no deadline to raise w/ 12(c) motion.
Types of Answers - FRCP 7(a)
- Answer to a complaint
- Answer to a counterclaim
- Answer to a crossclaim
- Answer to a 3rd Party complaint
The Answer – the “negative” defense
FRCP 8(b)
(1)In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party
(2) Denials – a denial must fairly respond to the substance of the allegation.
Wheat v Eakin
- Eakin filed a complaint against Wheat.
- Wheat acting pro se, filed a handwritten document as his Answer (“I deny all allegations”).
- Eakin requested and was granted a default judgment by the clerk for Wheat’s failure to plead or otherwise defend this action.
- No advance notice was given to Wheat. Clerk was wrong in entering default b/c while the form and language of Wheat’s response was less than desirable, he did state in short and plain terms his general denial.
David v Crompton & Knowles Corp.
- In D’s Answer, it stated that it was w/o sufficient knowledge or info to admit or deny.
- D wants to amend its Answer to deny that it designed, manufactured, and sold the machine in Q.
- P argues denial of knowledge or info was false and should be treated as an admission.
- Court rules that D’s averment of lack of knowledge was not proper and should be deemed an admission b/c Crompton clearly had access to and knowledge of that agreement b/c Crompton and Hunter.
- Add’tlly David’s complaint was filed 11 mo b4 the expiration of SOL and Crompton’s delay in denying liability allowed the SOL to expire, this delay is unduly prejudiced to David therefore deny request to amend b/c it would result in undue prejudice to David. Crompton now admitted something that is not true – judicial admission.
GEOMC v Calmare Theraputics
- GEOMC filed amended complaint.
- Calmare filed Answer asserting 9 affirmative defenses.
- Almost a year later, Calmare sought leave to amend Answer to add several additional affirmative defenses and several counterclaims.
- GEOMC says affirmative defenses lack enough facts to make them plausible.
R - Twombly applies to affirmative defenses but in light of the short period allowed for pleading defenses (as short as 21 days), the Twombly rule should be applied with less rigor to affirmative defenses.
Compulsory Countercomplaints
FRCP 13(a) – there are certain counterclaims D must state if:
(A) – arises out of the transaction or occurrence, make It or lose it
(B) – does not require adding another party over whom the court cannot acquire jdx
- use it or lose it
Permissive Counterclaim
13(b) Permissive Counterclaim – a pleading may state as a counterclaim against an opposing party any claim that is not compulsory.
If sued, must counterclaim if claim arises out of the same deal; can add any counterclaims that are unrelated.
Crosscomplaints (when can add)
Only add a claim against a co-D or a co-P, if it arises out of the same transaction.
Derivative Liability
FRCP 14(a)(1): You can only as a D bring in a 3rd party if you allege that that person is or may be liable to you for all or part of the claim against you.
Subject Matter Jurisdiction – Supplemental
RULE: 28 USC 1367(b) (only about cases where ONLY diversity jdx exists) – In a case solely on diversity jdx, supplemental jurisdiction does not apply if 3rd party or joinder over claims added by Plaintiff would result in lack of complete diversity.
