Litigation Process/FRCP Flashcards
What must a complaint include?
1) a short statement of the grounds for the court’s jurisdiction; 2) a short statement of the claim showing the plaintiff is entitled to relief; and 3) a demand for judgment for relief (which may be in the alternative).
If a defendant waives service of process, what else does she waive?
Nothing. A defendant waiving service of process does not automatically waive the right to object to venue or personal jurisdiction.
How consistent must the pleadings of a party be?
Not at all consistent. A party may set forth as many claims and defenses as they may have in their pleadings regardless of their consistency.
What must be present in order for named representatives to sue on behalf of a class in a class action lawsuit?
Questions of law or fact that are common to the entire class.
What types of sanctions can be levied on parties under Rule 11 of the Federal Rules of Civil Procedure?
Monetary penalties and nonmonetary penalties.
To whom can Rule 11 sanctions be extended?
Parties, lawyers and law firms.
When must the representatives of a class notify the class of a dismissal or settlement of the class action lawsuit?
When the judgment binds the class. If the judgment does not bind the class, the representatives need not inform the class of the settlement.
In a federal question case, when is the action considered as being commenced for Statute of Limitations purposes?
When the action is filed with the federal court.
What rule governs interpleader?
Rule 22 of the Federal Rules of Civil Procedure
What is the source of statutory interpleader?
28 U.S.C. 1335
What does it mean to implead someone?
To bring another party into the lawsuit which is on the same side as you. A defendant may implead a third party defendant.
What does it mean to interplead someone?
To bring another party into a lawsuit who opposes you. A plaintiff may interplead a third party defendant.
A class action lawsuit founded on diversity jurisdiction may go forward as long as . . .
any named class representative’s claim exceeds $75,000.
Supplemental Pleading —
a pleading relating to matters accruing after the date of the original pleading.
Intervention of Right —
where an applicant for intervention has an interest in the property or transaction which is the subject of the suit and whose ability to protect such interest might be impaired by the disposition of the action; i.e. the suit involves her property or something she has an interest in and she is a stakeholder in the outcome of the case.
Who issues a default judgment?
The Clerk of the Court
What is required for the Clerk of the Court to issue a default judgment?
The defendant cannot be an infant or incompetent; the plaintiff’s claim must be for a sum certain; and the default must have been entered because the defendant failed to appear in court.
A, a resident of Kansas, sues B, a resident of Missouri. The suit is filed in federal court and is therefore subject to federal civil procedure. Which state’s law governs the service of process on B?
Missouri law. Federal Rule of Civil Procedure 4 permits the service of process in accordance with the law of the state where the defendant is domiciled.
What must a 3rd party defendant do after having been impleaded by the defendant? What may he do?
After being impleaded by a defendant, a third party defendant must assert any compulsory counterclaims which arise out of the same common nucleus of operative fact and may assert any permissive counterclaims. The permissive counterclaims must meet the jurisdictional requirements, but need not arise out of the same common nucleus of operative fact as the original claim.
What is the overall test for determining whether there is personal jurisdiction?
1) is there a state statute granting personal jurisdiction; and 2) does personal jurisdiction satisfy the Constitution?
What does notice consist of?
A summons and a copy of the complaint.
If the D is to be served in the USA, service is to take place within how long?
Within 90 days of the complaint being filed with the court.
If the D executes and mails a waiver form to the P within ________ days, the D waives formal service of process.
30
If the D waives formal service of process, does D waive any defense like lack of PJ?
No
When D signs and mails the waiver form back to P, what does P do?
Files it with the court.
If D fails to return the waiver form, and there is no good cause for having not returned the waiver form, what is the D liable for?
The cost of service of process.
What happens if a process server fails to file an affidavit regarding his serving process on someone, what happens?
Nothing. It is still valid service.
When might someone be immune from service of process?
When that person is in a jurisdiction because they are a party, witness or attorney in a case in that jurisdiction. That is the only reason they are present in the jurisdiction.
How are other documents, like discovery, motions, etc. delivered to the other side?
Delivery or mail. You can also do it by email if you agree to do that.
Most claims under __________ law can be heard by state courts.
federal
There are three matters which, when a plaintiff writes a complaint, must be described in more detail than other causes of action. What are these causes of action?
Fraud; mistake; special damages.
What are the methods by which a defendant can respond to a plaintiff’s complaint?
1) by motion; or 2) by answer.
A defendant has how long to respond to a plaintiff’s complaint?
21 days if service of process was not waived; 60 days if waived.
Motions are not ______________.
pleadings
Answers are ______________.
pleadings
What must a defendant do in their answer?
1) respond to allegations of the complaint; and 2) raise affirmative defenses to the allegations.
The plaintiff and defendant both have right to amend their pleadings (complaint and answer, respectively) how often and within what time period?
Once; within 21 days of serving their complaint/response.
What happens if either party does not have a right to amend their pleading?
They must seek leave of court.
Where the evidence at trial does not match with the allegations made in the pleadings?
The court will grant that party leave to amend their pleading.
Under what circumstances can a plaintiff add a claim to their complaint after the statute of limitations has run on that claim?
The court will allow adding the claim to the complaint if it “relates back;” i.e. if the added claim concerns the same conduct, transaction or occurrence as the original pleading.
When can a plaintiff or defendant add a defendant after the statute of limitations has run on the cause of action?
If the addition of the defendant 1) concerns the same conduct, transaction or occurrence as the original; 2) the new party knew of this case within 90 days of filing; and 3) she also knew or should have known that, but for a mistake, she would have been named originally.
Must all potentially responsible defendants be joined in an action?
Never.
A necessary party can only be joined in a case if their joinder is ______________.
feasible; i.e. 1) there is PJ over you; and 2) joining you will not goof up diversity jurisdiction.
If a joinder is found to be feasible, what will the court do?
It will join you!
What happens if an absentee party is found that it cannot be joined due to lack of personal jurisdiction or another reason?
The court can 1) proceed without the absent party; or 2) dismiss the whole case.
Counterclaim —
a claim against an opposing party who has already made a claim against you. Ex: P sues D. D sues P back. D suing P back is a counterclaim.
What types of counterclaims are there?
Compulsory counterclaims and permissive counterclaims.
Compulsory Counterclaim —
A counterclaim which arises out of the same transaction or occurrence as the plaintiff’s original claim. These must br brought against the plaintiff or the defendant loses their right to assert it.
Permissive Counterclaim —
A counterclaim which does not have to be asserted in that particular case because it does not arise out of the same transaction or occurrence as the plaintiff’s original claim.
Must a counterclaim meet the requirements for subject matter jurisdiction?
Yes. All counterclaims must be assessed as to whether they meet the requirements for subject matter jurisdiction.
Crossclaim —
a suit against a co-party which arises from the same transaction or occurrence as the plaintiff’s original claim. These are not compulsive. You can bring these separately.
Must a crossclaim meet the requirements for subject matter jurisdiction?
Yes. Literally every claim must meet the requirements for subject matter jurisdiction. If it does not, try supplemental jurisdiction.
In regards to discovery, what must each party disclose to the other side?
Identities of persons who have discoverable information that you can use to support your position; documents or objects you may use to support your claims or defenses; a computation of relief and documents support it; and insurance coverage.
What happens if a party fails to disclose something she was required to disclose as an initial disclosure?
That party cannot use that material in their case.
Must you disclose an expert who helps you put the case together, but who you do not intend on having testify?
No. They are merely a consulting expert.
What must you disclose in regards to an expert witness?
1) the identity of the witness; and 2) a written report by the expert witness describing their findings, opinions, bases for the opinions, facts used to form opinions, their qualifications and how much they are being paid.
When may a person take a deposition of an expert witness?
After the written report by the expert has been submitted to the opposing side.
Must a side disclose earlier drafts of an expert witness’s written report?
No; those are work product.
