Civ Pro Final (1)

Question 1

Rule 8(a) Complaint Rule

Answer 1

Under Rule 8(a)(2), a pleading must contain a short and plain statement showing the pleader is entitled to relief. While detailed factual allegations are not required, the complaint must state a plausible claim for relief with factual content; conclusory statements, labels, and formulaic recitations of elements are insufficient. A claim is plausible if the factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Courts disregard legal conclusions and assess whether the well-pleaded facts plausibly suggest misconduct, using judicial experience and common sense

Question 2

Rule 8(b) Answer

Answer 2

An answer must admit, deny, or state insufficient knowledge for each allegation and fairly respond to their substance. The answer must also assert affirmative defenses with a short and plain statement. Partial denials must admit any true portions. If a counterclaim is asserted, the plaintiff may file a reply

Question 3

Equitable Estoppel - Connects to Rule 8(b)

Answer 3

A party may be estopped from denying an allegation in a pleading where the party’s ambiguous or misleadings denial causes the opposing party to reasonably rely on it to their detriment, particularly where such reliance results in prejudice such as the loss of a legal claim)

Question 4

Equitable Estoppel Elements

Answer 4

Defendant denial
Defendant’s denial in allegations in pleadings are ambiguous or misleading causing

Reasonable reliance
The opposing party relies on the deficient pleading in preparing or proceeding with the case

Detriment or prejudice
The relying party is harmed (loses the opportunity to sue the correct defendant due to the statute of limitations)

Estoppel as remedy
The misleading party may be barred from denying the allegation at trial

Question 5

General or ambiguous denials creating confusion

Answer 5

However, denials as an answer must fairly meet the substance of the allegation. General or ambiguous denials that create confusion or mislead the opposing party are improper and may be treated as admissions

Question 6

Part denial - good faith

Answer 6

Party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest

Question 7

Rule 8 Twombly Principle

Answer 7

The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice

Question 8

Twombly plausible

Answer 8

Nudge their claims across the line from conceivable to plausible

Question 9

Plausibility Def

Answer 9

Factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged

Plausibility is not probability - sheer possibility that defendant in lawfully acted

Question 10

Rule 8 (a) Complaint Easy

Answer 10

short and plain statement grounds for the courts jurisdiction

short and plain statement of the claim showing the pleaders is entitled to relief

Question 11

Rule 11 (a & B) Full rule

Answer 11

Under Rule 11, every pleading, motion, or other paper must be signed by at least one attorney of record. By signing, the attorney certifies to the best of their knowledge that:

(i) it is not presented for an improper purpose;

(ii) legal contentions are warranted by existing law or a nonfrivolous argument; and

(iii) factual contentions have evidentiary support.

Question 12

Rule 11(c) Full

Answer 12

If a party violates Rule 11(b), the court may impose sanctions after notice and a reasonable opportunity to respond. A motion for sanctions must be filed separately, describing the specific misconduct, and may not be presented to the court if the challenged paper is withdrawn or corrected within 21 days. The court may also initiate sanctions on its own. Rule 11 applies to all signed filings except discovery, and sanctions. Rule 11(C) is appropriate where the pleading filed is objectively unreasonable under the circumstances, or where the claim asserted is patently unmeritorious or frivolous. They’re are meant to deter misconduct and may include non monetary directives, penalties, or payment of attorney’s fees and expenses caused by the violation.

(d) does not apply to discovery

Question 13

Rule 12

Answer 13

​​To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”

Question 14

12(b)1-7

Answer 14

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

Question 15

Rule 12(b)(6) Motion Rule Statement:

Answer 15

It is the basis to dismiss a complaint on the merits, which is the failure to state a claim upon which relief can be granted. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Dismissal is appropriate if taking the facts as true, the law afforded plaintiff no relief OR the complaint does not state a claim that is plausible on its face. A court should not dismiss a complaint for failure to state a claim unless it is clear that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Legal conclusions must be supported by factual allegations, legal conclusions alone are not entitled to the assumption of truth.

Question 16

Rule 12 Evidence

Answer 16

You cannot attach evidence to a 12(b) motion to dismiss

Question 17

Rule 12 (b)(1)

Answer 17

Lack of subject-matter jurisdiction

Question 18

Rule 12 (b)(2)

Answer 18

Lack of personal jurisdiction

Question 19

Rule 12 (b)(3)

Answer 19

Improper venue

Question 20

Rule 12 (b)(6)

Answer 20

Failure to state a claim upon which relief can be granted

Question 21

Rule 12 Complaint court state cause of action but doesn’t

Answer 21

If the complaint could state a cause of action but does not yet, grants leave to amend the complaint

Question 22

In a 12(b)(6) motion, the court must

Answer 22

Assume the facts as alleged in the complaint are true

Allege enough facts to show the claim is plausible on its facts

Question 23

Assumption under rule 12

Answer 23

All factual allegations in the complaint are taken as true

The assumption of the truth applies only to facial allegations in the complaint

Legal conclusions must be supported by factual allegations

Legal conclusions alien are not entitled to the assumption of truth

Question 24

Twombly Demands

Answer 24

Does not require detailed factual allegations but it demands more than unadorned, the-defendant-unlawfully-harmed-me accusations

Question 25

Twombly principle 1

Answer 25

In reviewing a 12(b) motion, a court must accept all factual allegations in a complaint as true, threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice

Question 26

Twombly principle 2

Answer 26

Complaint must state a plausible claim for relief to survive a 12(b) motion, where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show(n)--that the pleader is entitled to relief

Question 27

Rules of law and facts in complaint

Answer 27

Needs enough details to show that this plaintiff suffered certain bad acts at the hands of the defendants - enough facts to create a plausible inference that the defendants had committed some wrongdoing against the plaintiff

Question 28

Rule 15 - 21 days

Answer 28

A party may amend its pleading once within 21 days after serving it or if the pleading is one to which a responsive pleading is required, 21 days after service of a motion under rule 12(b), (e) or (f), whichever is earlier. After the 21 days and before trial, 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.

Question 29

Under Rule 15(a)

Answer 29

Leave to amend “shall be freely given when justice so requires”. If the facts relied upon by a plaintiff may be a proper subject of relief, he should be given the chance to test his claim on the merits. In the absence of any apparent or declared reason, the leave sought should, as the rules require, be “freely given.” Reasons to deny leave to amend include undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by allowance of the amendment, and futility of amendment. The grant or denial of an opportunity to amend is within the discretion of the district court.

Question 30

Rule 15 prejudice

Answer 30

Prejudice must be shown to deny a rule 15(a)(2) motion, the burden is only on the party opposing the amendment to show prejudice Absent an improper motive like undue delay, bad faith, dilatory motive, or undue prejudice to opposing party leave should be freely given

Question 31

Rule 15 relation back rule

Answer 31

The amendment relates back to the original filing when it asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out in the original pleadings

Question 32

Rule 15 When amendment doesnt relate back

Answer 32

Under Rule 15(c), an amended complaint does not relate back to the date of the original complaint if it asserts a new and distinct cause of action based on facts not set forth in the original pleading. The original complaint must give the defendant file notice of the claim raised in the amended complaint

Question 33

Relation back policy

Answer 33

Based upon the principle that one who has been given notice of litigation concerning a given transaction or occurrence has been provided with all the protection that statute of limitation are designed to afford

Question 34

Rule 15 relation back (easy) policy

Answer 34

They were on notice on what they were being sued about when a new claim is being requested to the original claim

Question 35

Rule 15 changing parties

Answer 35

Did that party have notice about lawsuit If they have notice, they wouldn't be prejudiced being involved into a lawsuit If they didn't have notice and the SL is up, then they would be prejudiced being involved in the case

Question 36

Rule 15 changing legal theories

Answer 36

An amendment which changes the legal theory of the case is appropriate if the factual situation upon which the action depends remains the same has been brought to the defendants attention by the original pleading Facts are the same, only care about the facts

Question 37

Rule 15 facts and legal theory (easy)

Answer 37

Facts derive from the same nucleus of operative facts involving injuries Legal theory can be different if the facts are from the same nucleus of operative facts Facts must be the same, law can be different - doesn't matter about the law

Question 38

Rule 15 relation back full rule

Answer 38

An amendment relates back to the original pleading when it arises from the same conduct, transaction, or occurrence as the original claim. For new parties, relation back is permitted only if the new party had notice of the action and knew or should have known that, but for a mistake, they would have been named. (If they didn't have notice and SL is up, then they would be prejudiced being involved in the case). Relation back ensures fairness by giving defendants adequate notice, even if their legal theory changes, as long as the facts arise from the same nucleus of operative facts.

Question 39

Rule 16 (b)(1) Scheduling order

Answer 39

(b)(1) Scheduling order. Except in categories of actions exempted by local rule, the district–or a magistrate judge when authorized by local rule–must issue a scheduling order (A) after receiving the parties’ report under rule 26(f); or (B) after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conferenc

Question 40

Rule 16(b)(2) Time to issue

Answer 40

The judge must issue the scheduling order as soon as practicable, but unless they judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served with the complaint or 60 days after any defendant has appealed Easy Tip Scheduling order issued by court, based on written discovery report from parties

Question 41

Rule 26 Duty to Disclose -

Answer 41

Provisions governing discovery

Question 42

Rule 26 (a)(1) initial disclosure

Answer 42

Must provide to other parties: Name addresses and telephone number of each individual likely to have discoverable information (unless the use would be solely for impeachment) copy/description of all documents, electronically stored information, and tangible things to supports its claims or defenses (unless the use would be solely for impeachment) Must disclose how much in damages and how it got their, providing evidence to back it up unless its privileged If insurance might cover the judgement, they have to tell the other side about it and let them inspect and copy the insurance policy

Question 43

Rule 26 - information is discoverable if it is not privileged

Answer 43

is relevant to a claim or defense, and is proportional to the case’s needs. Proportionality factors include importance of the issues, amount in controversy, access to relevant information, parties’ resources, important in resolving the issue, whether burden outweighs its likely benefit Even if relevant, information may be privileged (b) Even if relevant and unprivileged, may still be undiscoverable under limitations listed (c) protective orders (annoyance, embarrassment, oppressive, undue burden, expansive)

Question 44

Rule 26- can compel parties and non-parties

Answer 44

Parties can compel other parties as well as non-parties to testify, respond to written questions, and produce documents

Question 45

Rule 26(b) Discovery Scope and Limits

Answer 45

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering The importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit Information… need not be admissible in evidence to be discoverable

Question 46

Rule 26(b) Relevant information

Answer 46

Relevance is connected to the law at stake in the case Relevant information “must tend to prove or disprove something the governing substantive law says matters”

Question 47

Rule 26 (b) - Proportionality

Answer 47

Proportionality consists of more than whether the particular discovery method is expensive Proportional + Accessibl;e = no cost-shifting

Question 48

Rule 26 (b)(2)(c) Courts limiting discovery

Answer 48

On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1)

Question 49

Rule 26(c)(1) Protective orders

Answer 49

The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expenses, including one or more (relevance is relational - there needs to be a link between evidence sought and a claim or defense)

Question 50

Rule 26 burden of protective order

Answer 50

It’s the part moving for this motion, the party seeking non-disclosure or a protective order to show good cause

Question 51

Rule 36 Assessing relevance of order

Answer 51

Looking at burden of time, money, privacy, liberty, motives for discovery request

Question 52

Rule 26(f)(1)

Answer 52

conference of the parties planning of discovery Parties confer Joint discovery plan created Submit written report outlining discovery plan The parties must confer as soon as practicable - and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due (unless court orders otherwise)

Question 53

Rule 26 (f)(2) conference content; parties responsibility

Answer 53

In conferring, the parties must consider The nature and basis of their claims and defenses Possibilities of settling promptly resolving the case Discuss any issues with preservation of discoverable info Written report outlining the plan 14 days after the conference

Question 54

Rule 26 (f)(3) A discovery plan must state the parties’ views and proposals on

Answer 54

Identify when initial required disclosures will be made under 26(a) Identify subjects of discovery, due dates, whether discovery will be conducted in phases Issues about preservation or discoverable information Privilege Limitations Any other orders that the court should issue under rule 26(c) or under rule 16(b) and (c)

Question 55

Rule 26 discoverable rule

Answer 55

Parties must make initial disclosures without awaiting a request, providing names, contact information of individuals with discoverable information, documents supporting claims/defenses, damage computations, and insurance coverage, unless privileged. Discovery may include any non privileged, relevant matter proportional to the case’s needs, considering the importance of issues, amount in controversy, and whether the burden outweighs the benefit. Relevance means the info must tend to prove or disprove something the governing substantive law says matters.

Question 56

Rule 26 limit rule

Answer 56

Courts may limit discovery if it is cumulative, obtainable from another more convenient source, already obtained, or outside the permitted scope. A party need not produce ESI (Electronically Stored Information) from sources that are not reasonably accessible due to undue burden or cost, unless the requesting party shows good cause. Courts may set conditions for such discovery.

Question 57

Rule 26 protective order rule

Answer 57

Protective orders can be issued for good cases to prevent annoyance, embarrassment, or undue expense. The party moving for a protective order must show that the information is not reasonably accessible because of undue burden or cost. Must also certify that a good faith attempt to resolve the dispute before seeking court intervention.

Question 58

Rule 26 discovery plan rule

Answer 58

Parties must confer at least 21 days before a scheduling conference to create a discovery plan, addressing disclosures, subjects of discovery, and any protective orders. Improper discovery certifications are sanctionable under Rule 26(g)(3).

Question 59

Rule 30 Deposition (Subpoena)

Answer 59

An oral Q&A like an informal trial Use for the people with the best information 7 hours max Like questioning a witness as you would at trial, but without a judge Can despise a party or non-party (may need to compel rule 45?) Lawyers for each side are present, along with a court reporter to transcribe, and sometimes a videographer will be present Witness is under oath Most evidentiary rules do not apply, but an attorney may object to questions about privileged information 10 depositions can be taken (rule 30(a)(2)(A)(i)) Each depositions is 1 day of 7 hours max (rules 30(d)(1)) Pros More they like you, the more willing to open up to facts Makes trial testimony predictable or impeachable Can ask follow-up questions on issues with surprise answers (unlike written interrogatories) Cons Expensive A witness may offer problematic testimony at a deposition that can be raised at trial

Question 60

Rule 33 Interrogatories (No Subpoena)

Answer 60

Written questions to be answered

Question 61

Rule 33 Interrogatories (No Subpoena) (a)

Answer 61

In General. (cannot gain from subpoena/it does not apply) (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories

Question 62

Rule 33 Interrogatories (No Subpoena) (a)(2) Scope

Answer 62

An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designed discoverable is complete, or until a pretrial conference or some other time.

Question 63

Rule 34 Producing evidence (Subpoena)

Answer 63

Documents, electronic media, photographs - tangible items

Question 64

Rule 34 Producing evidence (Subpoena) (a)

Answer 64

In General. A party may serve on any other party a request within the scope of Rule 26(b) : (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: (A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or

Question 65

Rule 34 Producing evidence (Subpoena) (a)(2)

Answer 65

to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

Question 66

Rule 35 Physical and Mental Examination (No Subpoena)

Answer 66

Allows a court to order a party (or a person under a party's control) to undergo a physical or mental examination when their condition is in controversy, provided the requesting party demonstrates good cause, with the order specifying the details of the examination. Mutually acceptable doctor for both parties

Question 67

Rule 35 Physical and Mental Examination (No Subpoena) Specific

Answer 67

If a party whose mental or physical condition… is in controversy, the court may order a physical or mental examination by a suitable licensed or verified examiner The party seeking the examination must show good cause for the request. Rule 35(a)(2)(A) Rule 35(a)(2)(A) Motion and Notice; Contents of the Order. The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and

Question 68

Rule 36 Admissions (no subpoena)

Answer 68

Pin-pointing an adversary’s position about a fact Admit or deny

Question 69

Rule 36 Admissions (no subpoena) Scope

Answer 69

A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and

Question 70

Rule 36 Admissions (no subpoena) Form; copy of a document

Answer 70

Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying.

Question 71

Rule 36 Admissions (no subpoena) (3) Time to Respond; Effect of Not Responding.

Answer 71

A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney. A shorter or longer time for responding may be stipulated to under Rule 29 or be ordered by the court.

Question 72

Rule 36 (4) Answer

Answer 72

If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.

Question 73

Rule 36 (6) Motion Regarding the Sufficiency of an Answer or Objection.

Answer 73

The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses. Discrete questions designed to limit what facts are at issue Each request for admission ask recipient to “admit… the truth of any matters [identified]”. Rule 36(a)(1) Can only be posed to a party Can ask an unlimited number of requests for admission Like an answer, the part responding to a request for admission will admit, deny, or explain why it cannot neither admit/deny)