Chapter 5 - Pleadings - Concepts Flashcards
(89 cards)
1
Q
Modern pleading rules essentially limit pleadings to notice (1) and (2), with more advanced actions like discovering facts and disposing of frivolous claims covered in (3) and (4) stages.
A
- claims
- defenses
- discovery
- motion
2
Q
Good pleading practice is a combination of (!) and (2).
A
- a good litigation plan
2. technically precise writing
3
Q
4 forms of claims permitted by Rule 8 FRCP
A
- complaint
- counterclaim
- cross-claim
- third-party complaint
4
Q
3 elements of a caption
A
- file number
- names of the parties and identification of the side of the action for each
- court in which case is being filed
5
Q
The complaint must list all (1) but subsequent pleadings can use (2). In addition to name, complaints must list (3). It should also be spelled out when (4).
A
- parties
- et. al
- legal status (corporation, trustee, guardian)
- a party is being sued both individually and in a representative fashion
6
Q
Each pleading should be labeled to show what (1) it is. Each pleading must be (2) by a (3). Some states require (4); FRCP does not.
A
- type (complaint, cross-claim, answer)
- signed
- lawyer
- verification
7
Q
Per Rule 11 FRCP, a good faith belief that a pleading is well-founded is not enough; a lawyer must have made a (1) into the law and facts.This applies to (2) as well. The (3) or (4) may bring motion for sanctions if Rule 11 is violated.
A
- reasonable inquiry
- parties brought in
- opposing party
- court itself
8
Q
When a party is represented by a lawyer, service should be made on the (1). Court papers served on parties must be filed with the (2) before or a reasonable time after service. The usual proof for service is a (3) or (4) attached to the end of the pleading.`
A
- lawyer
- court clerk
- certificate
- affidavit of service
9
Q
4 essential components of the complaint
A
- statement showing jurisdiction of court
- statement of claims showing plaintiff is entitled to relief
- statement of relief requested
- jury demand, if applicable
10
Q
3 ways federal jurisdiction can be conferred
A
- federal statute
- constitutional provision
- treaty
11
Q
An individual has only one (1). A corporation is deemed a citizen of both the state where (2) and the state where it has its (3). An alien is treated as if (4)
A
- state of citizenship
- incorporated
- principal place of business
- the country of foreign citizenship were a 51st state
12
Q
Unincorporated associations are citizens of states in which (1). Partnerships are citizens where any (2). For legal representation (executors, guardians), the (3) determines jurisdiction.
A
.1 any of its members are
- general partner is
- representative’s citizenship
13
Q
Rule 8 states pleasings should be (1), with only a few claims–mainly (2) and (3)–pleaded with particularity. These more particular claims are covered in (4).
A
- simple, concise and direct
- fraud
- mistake
- Rule 9
14
Q
Rule 10 permits attaching exhibits to pleadings, usually done in (1).
A
- contract cases
15
Q
2 reasons a good prayer for relief is important
A
- remedy is often controlling on right to a jury or to wave it
- if a default judgment comes up against defendant, relief sought can play into method of obtaining relief
16
Q
The filing of the complaint begins (1) and (2). The latter is different for (3) cases. When the complaint is filed, the clerk is directed to issue the (4).
A
- the action
- tolls the statute of limitations
- diversity of citizenship
- summons
17
Q
5 things usually included in the summons
A
- defendant’s name and address
- plaintiff’s attorney and attorney’s address
- request for answer
- time limit on answer
- statement of consequences of nonreply
18
Q
4 ways summons on individuals can be served
A
- personally
- left at his dwelling with a person of suitable age
- on an agent authorized by appointment or law to receive process
- using either the law of the forum state or the state where the def is served, per constitutionally sufficient contacts with state (long-arm-statutes
19
Q
In some cases, the plaintiff might officially encourage the defendant to (1) to save on costs and foster cooperation.
A
- waive service and summons
20
Q
The (1) of geographical scope applies for third party defendants
A
- 100-mile “bulge” rule
21
Q
When serving on someone living in another country, be aware of the (1) and its rules regarding service of process in countries that are signed on to the treaty.
A
- Hague Convention
22
Q
Under rule 4 FRCP, service of complain and summons must be filed (1) after complaint.
A
- 120 days
23
Q
If you know the lawyer and can get him to agree to take service, (1) can be convenient. If you think the defendant will (2) or (3), serve formally under rule 4.
A
- informal service
- avoid service
- contest validity of service
24
Q
Lecture : Removal by a defendant to federal court is successful is the defendant has proof that (1).
A
- the case should have been brought there in the first place
25
Lecture : To be eligible for compulsory arbitration, amount in controversy must be between (1) and (2). (3) are sometimes filed before arbitration to save costs on highly paid arbitrators.
1. $10,000
2. $50,000
3. agreements of reference
26
Lecture: Alternative dispute resolution is not binding unless (1), so cases can still make to trial. Arbitration may be waived if (2) is agreed to.
1. parties agreed to be bound
| 2. another alternative dispute resolution
27
Lecture : The paragraph written on the Certificate of Compulsory Arbitration assignment is part of the (1). In response to it, the defendant files a (2) which may be a (3) if the defendant disagrees about arbitrability. The (4) ultimately decides if there is a conflict.
1. Procedure for determining suitability for arbitration
2. certification of agreement
3. controverting certificate
4. judge
28
Lecture: The attorney needs to amend certificates (1)--that is, within (2) days--if anything new comes up that changes arbitrability. Attorneys may be (3) for filing incorrectly. Despite limits on arbitrability, arbitration may actually award (4).
1. seasonably
2. 30
3. punished
4. more than $50,000
29
Lecture : Once an arbitrator is selected, a (1) is sent to him. Each side has 10 days to (2) him if there is a conflict of interest, etc.--each attorney gets one of these. An arb. should (3) himself if there is a conflict of interest, but attys may have to file a (4) to force it instead.
1. notice of appointment
2. peremptorily strike
3. recuse
4. motion
30
Lecture : Arbitrators may administer (1) to witnesses in place of a judge. The arbitration hearing is scheduled (2) days from arbitration appointment of arbitrator, and parties must be given (3) days notice. No hearings on (4) or (5).
1. oaths
2. 60-120
3. 30
4. weekends
5. holidays
31
Lecture: What 5 things may only the judge (not the arbitrator) rule on?
1. to extend time
2. to dismiss
3. withdrawal
4. summary judgment
5. sanctions
32
Lecture: the arbitrator gets copies of all (1) to be considered. He may use only those or pull the entire (2). If parties (3), they must notify the arbitrator.`
1. documents
2. file
3. settle
33
Lecture: Witnesses may be (1) for arbitration. The initial disclosure is due (2) days within service of the answer. The (3) discloses to the arbitrator witnesses, exhibits, claims and defenses. Documents can be admitted without proof of authenticity unless an issue is raised in the (4). Depositions by (5) are admissible.
1. subpoenaed
2. 30 days
3. pre-hearing statement
4. pre-hearing statement
5. transcript
34
Lecture: Arbitration does not have to be (1) but it is an option at the party's expense. If arbitration is not done in (2), the right to appeal is waived.
1. recorded
| 2. good faith
35
Lecture: Within (1) of arbitration, a decision is made and a (2) is filed (with the court as well). Within 5 days of that, the opposing party may file (3). Within 10 days, the prevailing party may submit a (4) that can include attorney's fees and costs. If the arbitrator does not submit an award, the (5) turns into the award.
1. 10 days
2. notice of decision
3. objections
4. proposed award
5. notice of decision
36
Lecture: If the arbitrator does not finish his job, the (1) finishes in his place. The compensation to the arbitrator is (2).
1. judge
| 2. $75/hr.
37
Lecture: Within (1) of the award, the losing party may appeal (2). The pleading filed for this is called the (3).
1. 20 days
2. de novo
3. Appeal from Arbitration and Motion to Set Trial
38
Misc. Lecture: The wherefore clause is also called the (1). John Doe is an example of a (2). The last part of the complaint is the (3). Specific damages are also called (4).
1. prayer
2. fictitious name
3. verification
4. compensatory
39
Misc. Lecture: What are the seven sections (8 lines) in the heading of a complaint?
1. law firm name
2. atty name
3. Bar ID
4. address (including another line for city/state/zip)
6. Phone #
7. email
8. Atty for PLT/DEF
40
2 ways a defendant can respond to a complaint and summons
1. answer (20 days normally, 60 days if service waived)
| 2. make a motion (including a memorandum of law) attacking claimed defects in the complaint (usually within 20 days)
41
3 motions a defendant can make in response
1. motion to strike (material that is not permitted)
2. motion for a more definite statement (infrequently granted, says that complaint is too vague/ambiguous to respond to)
3. motion to dismiss
42
All defenses in a motion to dismiss must be (1). (2) defenses are waived unless timely presented, but (3) cannot be so waived. There may be little point in raising (4), however, because they are easily cured--(5) is an exception.
1. consolidated into one motion
2. procedural irregularity
3. substantive defenses
4. procedural irregularity
5. personal jurisdiction
43
7 defenses that can be raised in a motion to dismiss
1. lack of subject matter jurisdiction
2. lack of personal jurisdiction
3. improper venue
4. insufficiency of process
5. insufficiency of service of process
6. failure to state a claim upon which relief can be granted
7. failure to join a party under Rule 19
44
If (1) can be raised and the current one is inconvenient, this should be raised in the motion to dismiss. (2), (3) and (4) can be raised at several other parts of the litigation process.
1. improper venue
2. lack of subject matter jurisdiction
3. failure to state a claim upon which relief can be granted
4. failure to join an indispensable party
45
The trend has been to avoid raising issues in a (1) and instead including them in the (2), unless it is strategic to do the former. Rule 12 grounds should be developed both (3) and (4); if case law is pertinent, it should be contained in an accompanying (5),
1. motion to dismiss
2. answer
3. factually
4. legally
5. memorandum of law
46
The answer to the complaint (1) or (2) the various allegations, or states not enough knowledge to form a belief as to their truth, and asserts a number of (3). It is written in (4) and (5) terms.
1. admits
2. denies
3. defenses
4. short
5. plain
47
An answer is generally due (1) after the complaint; if a motion is filed and the court gives action, the answer is then due (2) after.
1. 20 days
| 2. 10 days
48
Defenses in an answer may be set out (1), (2) or (3).
1. alternatively
2. inconsistently
3. hypothetically
49
Failing to answer a complain will constitute (1) of all facts except the (2). Raising issues of (3) must be made with particularity. Where there are multiple defendants, the (4) will be more specific.A (5) must be set out in the caption and at the end of an answer.
1. admission
2. prayer for relief
3. capacity to sue/be sued
4. title of the answers
5. request for a jury trial
50
Denying all allegations not (1) is good practice. Not every allegation in the complaint must be (2)--some will be directed at (3). It is good practice, however, to (4).
1. specifically admitted
2. responded to
3. other defendants
4. point this out
51
An (1) raises new matters not otherwise in issue by the defendant's denial of an allegation in the complaint.
affirmative defense
52
It is good practice to deny, at the end of every count, all allegations (1). Admitting a fact, even if unnecessary, could prevent (2) to prove the fact. It is safe in the answer to (3) if one is desired, regardless of whether the plaintiff did so.
1. not specifically admitted/answered to
2. further discovery
3. request a jury trial
53
A counterclaim is functionally identical to a (1) and is made part of the (2).
1. complaint
| 2. answer
54
4 requirements of a compulsory counterclaim--one required to bring against a plaintiff at that time for efficiency
1. claim must already exist when def. is required to answer the complaint
2. claim must arise out of the same event on which the complaint is based
3. court must be able to obtain jurisdiction over any necessary additional parties
4. counterclaim must not be the subject of a pending action
55
3 ways of determining whether a defendant's claim involves the same transaction as the plaintiff's (for compulsory counterclaims)
1. deciding whether legal/factual issues are the same
2. whether trial would involve the same proof
3. whether complaint and counterclaim are logically related
56
A (1)--one that does not need to be brought but can--exists if it does not arise out of the transaction on which the plaintiff's complaint is based. Both (2) and (3) must exist before the defendant can bring permissive counterclaim.
1. permissive counterclaim
2. independent jurisdiction
3. proper venue
57
Sovereign immunity of the US applies to (1) as well. The exception is (2) to lessen damages owed if the US is suing.
1. counterclaims
| 2. recoupment
58
Failure to plead a (1) bars the def. from asserting it later. While certain exceptions apply, (2) failure does not because the concept of (3) applies only to amended pleadings.
1. compulsory counterclaim
2. Statutes of limitations
3. "relation back"
59
The counterclaim should be drafted like a (1). It should clearly be set off from the (2).
1. complaint
| 2. answer
60
All the motions that apply to responding to a complaint, apply to responding to an (1). A (2) is the plaintiff's answer to the counterclaim and is written the same way as an answer. The plaintiff need only respond to a counterclaim if (3) and if it is (4). A careful plaintiff, however, will (5).
1. answer
2. reply
3. there is one in fact
4. labeled separate from the answer (so it doesn't seem to be an affirmative defense)
5. respond to anything that could be a counterclaim
61
2 requirements of a cross-claim
1. arises from same transaction
| 2. relates to any property that is subject matter of the original action
62
Plaintiffs may cross-claim against each other for (1). (2) may also cross-claim against each other. Cross-claims are always (3) and there are no (4) involved.
1. counterclaims
2. third parties
3. discretionary
4. waiver dangers
63
A cross-claim must be made in a party's (1), usually the (2).
1. responsive pleading
| 2. answer
64
Since cross-claims must involve the same (1) as the original complaint or counterclaim, jurisdiction over the cross-claim is (2), and venue is considered (3). If the original complaint is dismissed, (4)
1. subject matter
2. ancillary
3. already established
4. the cross-claim will be too
65
Cross-claims on the US cannot (1),
enlarge the scope of claim on which the US has consented to be sued
66
The cross-claim must be served with the (1) and on (2). It should be drafted like a (3), and the prayer for relief reflects the (4) position of the cross-claiming party.
1. defendant's answer
2. all parties (including those brought in)
3. complaint
4. contingent liability
67
(1), or (2), is a way of bringing into the action new parties who may be liable to the def. for some or all of the judgment that the plaintiff may obtain against the def. The original defendant becomes a (3), filing a (4) against the new party. Like compulsory counterclaims, required third-party practice seeks (5) and (6).
1. Third-party practice
2. impleader
3. third-party plaintiff
4. third-party complaint
5. efficiency
6. consistency in results
68
A third-party complaint can be done without (1) as long as it is done within (2) of the answer to the plaintiff's complaint. The court has (3) over third-party practice and may bar it if it causes (4).
1. leave of court
2. ten days
3. discretion
4. prejudice against the plaintiff.
69
4 types of claims that can be brought under third-party practice rule
1. third-party practice based on any theory (contribution, etc.) that passes part or all of the def's liability to new parties
2. contingent claim - "is or may be liable"
3. independent claim against third-party defendant as long as one claim is proper
4. claim against third-party def. that plaintiff could not bring
70
Because (1) claims can be brought in third-party, (2) may not properly exist. Drafting a third-party complaint is similar to drafting an (3), though it should (4). It may also have to (5).
1. independent
2. jurisdiction and venue
3. original complaint
4. recite circumstances of the original complaint
5. move for leave of court (to bring new parties in)
71
6 options a third-party defendant has in responding the the third-party complaint
1. make Rule 12 motions
2. answer complaint
3. assert defends original defendant may have against original plaintiff (CYA)
4. counterclaim directly against original plaintiff
5. cross-claim against defendants
6. bring yet another third party into lawsuit
72
After a third-party complaint has been filed, the (1) can file an (2) against the third-party defendant, though this requires (3)
1. original plaintiff
2. amended complaint
3. independent jurisdiction
73
(1) is the procedure under which a party, the (2), subject to double liability because 2+ claimants are making competing claims, can resolve these claims. These are common with (3) claims. The court is asked to decide (4).
1. interpleader
2. stakeholder
3. insurance
4. what is owed to whom
74
2 types of interpleaders
1. Rule 22 interpleader
| 2. statutory interpleader
75
An interpleader should be written like a (1) but include statement about how the (2) has been supplied. The prayer for relief should ask for (3), for an (4), and for (5)
1. complaint
2. fund/bond
3. determination of liability
4. injunction against new claimants
5. atty's fees and costs
76
2 types of intervention of right (butting in on a lawsuit which a plaintiff has an interest in)
1. US statute confers unconditional right to intervene
| 2. Rule 24
77
Three requirements of intervention set out in Rule 24
1. Intervenor must claim an interest
2. disposition of action impedes his ability to protect that interest
3. intervenor is not adequately represented by existing parties
78
(1), as opposed to interventions of right, are up to the court's discretion and requires a (2). If denied, the plaintiff does not face legal consequences because (3) does not apply.
1. permissive intervention
2. question of law or fact in common
3. res judicata
79
(1) will be considered in granting permissive intervention. An intervenor must make a (2) and attach an appropriate (3) if it is allowed. The motion must be (4). Denial of intervention of right is generally (5); permissive intervention only if there is an (6)
1. timing delay of the case
2. motion
3. pleading
4. served on all parties
5. appealable
6. abuse of discretion
80
4 class requirements that must be met before a case can proceed as a class-action
1. so numerous that joinder is impracticable
2. questions of law or fact common to the classes
3. claims/defenses of parties typical of claims/defenses of the class
4. representative parties must protect the interests of the class
81
3 fact situations in which a class action is appropriate
1. separate action s would create a risk of inconsistency OR would determine interests of others in the class who are not parties
2. defendant has failed rights of the class that are generally applicable (civil rights)
3. law/facts common to members of the class predominate over those applied to the individual
82
For diversity of citizenship jurisdiction in class action lawsuits, the (1) standard is easy to reach, but the (2) must be reached individually by each representative. Sometimes these cases end up in federal court anyway because of (3)
1. complete diversity
2. amount threshold
3. federal question jurisdiction
83
The initial procedures in a class action
1. determine quickly if the action can be brought as a class action
2. notice to all members identifiable through reasonable effort
84
Amended pleadings should be (1) whenever (2) requires it.
1. freely allowed
| 2. fairness
85
Any party has a right to amend a pleading (1), at any time before the (2) is made or else within (3) after service unless the case is already on the (4). A (5) is not considered a responsive pleading. If an amendment is by right, no (6) is required--though this can conflict with the opposing rule for adding parties.
1. once
2. responsive pleading
3. 20 days
4. trial calendar
5. motion
6. court action
86
Amendments by (1) are often given freely and can change many aspects of the pleadings. Discretion may be exercised when amendment would create (2). It is easier to gain leave to amend before (3).
1. leave of court
2. prejudice
3. discovery
87
2 different types of amendments to pleadings that are considered separately in the context of relation back--or considering the amended pleading filed at the same time as the original pleading even if the statute of limitations has run.
1. changing facts and theories (same basic claim yes, new claim no.)
2. changing parties (added party knows or should know about suit yes)
88
Relation back is rarely involved with (1) since they raise new issues.
1. supplemental pleadings (added on to original)
89
A motion of leave to amend must meet the same requirements--grounds and relief sought--as (1). Other parties must receive (2). The amended pleading can be attached as an (3) to the motion.
1. other motions
2. timely notice
3. exhibit
