Civ Pro 2 - Applicable Law & pretrial process Flashcards Preview

Bar > Civ Pro 2 - Applicable Law & pretrial process > Flashcards

Flashcards in Civ Pro 2 - Applicable Law & pretrial process Deck (18)
Loading flashcards...

Erie Doctrine - 2 Shortcuts

(1) Statutes of Limitations are Substantive
(2) Choice of Law Rules are Substantive


Types of Pleadings

1. Complaints
2. Answers to complaints
3. Answers to counterclaims
4. Answers to cross-claims
5. Third-party complaints
6. Answers to third-party complaints
7. Replies to answers if ordered by the court


Contents of a Complaint

(1) Grounds for subject matter jurisdiction
(2) Statement of facts sufficient to show the P is plausibly entitled to relief.
(3) Demand for judgment and relief


Inconsistent Claims

Are ok in a complaint


Amending a pleading - As of Right

(1) Unilaterally amend within 21 days of filing or 21 days of receiving an answer or motion to dismiss.
(2) Amend an answer within 21 days of filing it.


Amending Pleading - With Permission

(1) Permission from opposing party.
(2) Permission from the court. Court will consider:
(a) The length and reason for the delay
(b) The prejudice to the opposing party from the delay


Statute of Limitations - Adding a New Claim

The amendment with the new claim will relate back to the date of filing of the complaint as long as the new claim arises from the same transaction or occurrence as the existing claims.


Statute of Limitations - Adding a New Party

Will only relate back to date of filing if:
(1) Party to be added received notice of the filing of the original claim within 120 days of service of the original complaint.
(2) Same conduct, transaction, or occurrence as the original
(3) Party added knew that, but for a mistake, the original clai would have been asserted against him.


Answer - Admissions and Denials

For each allegation in a complaint, the D must admit or deny it. If the D fails to admit or deny an allegation, the allegation is deemed admitted.


Answer - Defense

D should raise any defense he has. Failure to raise a defense constitutes a waiver. However you can't waive defenses of failure to state a claim upon which relief can be granted, failure to join a necessary party, and lack of SMJ.


Motion for More Definite Statement

If a complaint or answer is so vague or ambiguous that the responding party cannot reasonably prepare a response, the responding party may move the court to order the pleading clarified.


Motion to Strike

If a complaint or answer contains redundant, immaterial, or scandalous matter, the court may--on its own or by motion--order the improper material stricken.


Timing of Responses

(1) Initial response - 21 days if process served, 60 days if process waived.
(2) Secondary response - if D files a motion and motion is denied, D has 14 days to file an answer from when motion was denied.


Rule 11

(1) Good faith in submissions
(2) Good law
(3) Good facts


Rule 11 Sanctions

Party seeking must draft motion and serve it on other party and they have 21 days after service to fix the violation. Sanctions can bee monetary or not. Not applicable to discovery violations.


Preliminary Injunction

(1) Substantial likelihood of success on the merits.
(2) Irreparable harm to the seeker if not given.
(3) Harm to the P if injunction is denied must be > harm to D if injunction granted
(4) It wouldn't be against public interest
(5) Payment of security by P


Temporary Restraining Order

Same requirements as preliminary injunction but it expires 14 days after issuance and can be extended for another 14 days if you show good cause. Can be granted ex parte if you try to notify D but were unable to.


Erie Doctrine

Generally, a federal court with diversity or supplemental jrdx presiding over a state-law claim will apply the substantive law of the state and federal procedural law.