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Civil Procedure > Civ Pro Final > Flashcards

Civ Pro Final Flashcards

1
Q

Rule 7 (a)

A

TYPES OF PLEADINGS: complaint; answer to complaint; answer to counterclaim designated as a counterclaim; answer to cross-claim; third-party complaint; answer to third-party complaint; reply to answer if ordered by court

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2
Q

Rule 8

A

COMPLAINT:

- Must be written, filed with court, given to D

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3
Q

Rule 8(a)

A

short and plain statement

  1. Grounds for subject matter jurisdiction (establish how court can hear the case)
  2. Claim showing entitlement to relief (facts + legal right violated)
  3. Demand for judgment and type of relief sought (money, injunction, etc.)
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4
Q

Haddle v. Garrison

A

▪ Fired for participating/cooperating in investigation against employer. At will employee.
▪ Lower courts: granted D’s 12b6 motion – failure to state a claim upon which relief could be granted
▪ SC: reversed, at-will employee has claim for damages
▪ Rule 8(a)(2): P needs short & plain statement of claim showing P is entitled to relief

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5
Q

Bell v. Novick Transfer

A

▪ D was driving in a “careless, reckless, negligent manner” HOLDING: the complaint is sufficient; no more specificity required
● Post Twombly & Iqbal, this might be considered conclusion and not fact (so would get dismissed)

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6
Q

What are the historical changes to purpose of pleading?

A

o CL: demonstrate appropriateness of case, narrow to single issue for trial, formalistic
▪ Problem: could not distinguish strong claims from weak ones
o CODE: give notice to D of allegations and required facts focus on facts – must state facts constituting a cause of action
▪ Problem: courts could not agree on what “fact” was – too broad/narrow
o FED RULES: give general notice of claims and defenses → emphasis on discovery, not pleading (sorting strong/weak cases happens during discovery)

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7
Q

“Short and plaint statement”

A

(over time, shift from notice to plausibility)

  • Conley
  • Twombly
  • Iqbal
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8
Q

Conley

A

just needed to be possible
▪ “Notice pleading” – idea is that discovery will sort grounded from ungrounded claims
▪ “complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the P can prove no set of facts in support of his claim which would entitle him to relief”
▪ Twombly reversed Conley standard by saying that there just needs to be a nudge from conceivability to plausability

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9
Q

Twombly

A

move from conceivable plausible
▪ Antitrust case re telephone companies conspiring to fix prices
▪ Held that a complaint’s allegations must state a plausible entitlement to relief; rejection of Conley
● not enough to be possible… allegations have to be plausible”, if not plausible complaint must be dismissed
● Court introduces “plausibility” language, but we don’t know what it means or scope (if it just applies to antitrust cases)
▪ Antitrust case that would require a lot of $$ spent on discovery – don’t want a P with largely groundless claim to take up time of other people, increasing discovery costs

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10
Q

Iqbal

A

o (9/11 racial profiling case): further described how allegations should be evaluated to evaluate what “plausible” is, courts should:
▪ (1) Separate facts from law (look at factual allegations; disregard conclusions – do not presume they are true); then
▪ (2) Decide whether the factual allegations plausibly give rise to the plaintiff’s claim
● In assessing plausibility, district courts should rely on common sense and judicial experience, context specific task
▪ Extends Twombly to all complaints, not just antitrust
▪ An alternative standard for dismissing a case at the pleading stage
▪ Ways in which new standard upended certain ideas of Civil Procedure
(1) contrast to low level pleading standard
(2) against idea that facts supporting claim would be learned during the discovery process
(3) requires P to do sufficient factual investigation before pleading; must have enough facts in complaint prediscovery to make a plausible claim
(4) prior assumptions: Ps didn’t know facts at complaint stage and would learn it during discovery
▪ NOTE: this two-step process did not become a rule (could have amended 8 or 12)

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11
Q

What is the requirement for Pre-Twombly?

A

Give D fair notice of P’s claim and ground (facts) upon which it rests

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12
Q

What does Pre-Twombly emphasize?

A

Notice

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13
Q

What is the reason for Pre-Twombly?

A

Facts settled in discovery – pleading is not a game of skill in which one mistake should decide

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14
Q

What is the requirement for Post-Twombly?

A

Above speculative level and beyond mere possibility, with enough facts to state claim plausible on its face (possible < plausible < probable, suggestive of liability)

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15
Q

What does Post-Twombly emphasize?

A

Plausibility

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16
Q

What is the reason for Post-Twombly?

A

Sorts cases before discovery (save $)

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17
Q

What is the Post-Twombly Test?

A

(1) accept allegations as true unless conclusory or recitation of COA elements, (2) assess plausibility, must be “suggestive of liability” using contact, judicial experience, common sense

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18
Q

What is the problem with plausibility standard?

A
  • may work TOO well – may screen out cases where there is plausibility but they don’t have the information to show it at the time of the complaint (does not cure problem court was concerned about)
    o Other concerns:
    1) how frequently Ps bring frivolous cases is a point that is debatable
    2) there is still not 100% clarity as to what this new standard means
    3) this standard might not weed out the right cases (as said above) and
    4) there may be other ways of addressing similar problems without the need to require plausability
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19
Q

Rule 8d

A

allows claim to have inconsistent facts, idea that discovery will show what claims are incorrect

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20
Q

Rule 9

A

Pleading special claims

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21
Q

Rule 9(b)

A

● heightened pleading standard when alleging fraud or mistake – requires more detail -> must disclose time, place, and nature of alleged misrepresentations (state with particularity the circumstances)
○ Malice, intent, knowledge -> allege generally, but meet Rule 8 standards, generally = plausibly

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22
Q

What is the primary purpose of Rule 9(b)?

A

provide D fair notice of claim and factual ground on which it is based

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23
Q

What is the justification for Rule 9(b)?

A

o if fraud occurred, P is likely to still be in the dark about some salient facts; punitive damages often associated (more at stake) – if you’re going to bring punitive damages, need to do more than just generally state law

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24
Q

Low pleading barrier

A
  1. How litigation system envisioned by FRCP
  2. More extensive discovery – allows P to uncover all facts
  3. Summary judgment and discovery become focus of litigation
  4. If high barrier, more P’s whose cases could be strengthened by discovery will lose chance
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25
Q

High pleading barrier

A
  1. Fewer meritless suits – with lower barrier, might spend time/money defending meritless suits (unwarranted costs on system and parties)

CON: might work TOO well (i.e. screen out cases w/ plausibility just not at time of complaint)

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26
Q

Rule 11

A

SANCTIONS
● Applies to pleadings, written motions, or other papers – papers that go to court
● Imposes requirements on P (and D in answers) – can’t misrepresent facts or make legally unsupported claims in complaint
● Concerns behavior during filing of pleading in litigation
● Restricts lawyer’s ability to file a pleading when he has no more than a hope that favorable facts or law will emerge as the case progresses -> cannot file groundless claim
- Regulates the way lawyers/clients conduct themselves – sets ethical limitations/requirements
- At the time document is filed with the court, must have good faith basis for filing
- Must give other side 21 days to fix complaint
- Court has huge discretion to determine proper sanctions (usually monetary, but can be whatever court feels necessary to deter future conduct)

27
Q

Rule 11(c) (4)

A

o Goal is to do what suffices to deter repetition of the conduct/comparable conduct
▪ Sanctions can include nonmonetary directives
▪ Courts can’t be aggressively punitive

28
Q

Rule 11(a)

A

o Signature – every pleading, written motion, and other paper must be signed by at least one attorney (or by the party personally if they are unrepresented)

29
Q

Rule 11(b)

A

o Representations to the court – by presenting court with written pleading, motion, or other paper, by signing, filing, submitting, or later advocating it, attorney or unrepresented party certifies that to the best of his knowledge, information, and belief:
▪ 11(b)(1): not being presented for improper purpose, i.e. to harass, cause unnecessary delay, needlessly increase cost of litigation
▪ 11(b)(2): claims are warranted by existing law – not frivolous, baseless claim (unsupported legal contention)
▪ 11(b)(3): factual contentions have evidentiary support, or will after opportunity for discovery – lawyer has obligation to make sure there’s evidentiary support/claims legitimate
▪ 11(b)(4): denial of factual contentions are warranted on the evidence, or reasonably based on belief/lack of information

30
Q

Rule 11 (b)(2)

A

claims are warranted by existing law – not frivolous, baseless claim (unsupported legal contention)

Relevant cases:

  • Walker v. Norwest Corp
  • Chistian v. Mattel
31
Q

Rule 11 (b)(1)

A

not being presented for improper purpose, i.e. to harass, cause unnecessary delay, needlessly increase cost of litigation

32
Q

Rule 11 (b)(3)

A

factual contentions have evidentiary support, or will after opportunity for discovery – lawyer has obligation to make sure there’s evidentiary support/claims legitimate

33
Q

Rule 11 b(4)

A

denial of factual contentions are warranted on the evidence, or reasonably based on belief/lack of information

34
Q

When do violations warrant sanctions?

A 
o	11(c)(1): after notice and reasonable opportunity to respond; must let attorney know outside of court and give chance to correct error (must go to attorney before going to the court) - client can be sanctioned too
o	11(c)(2): motion for sanctions must be made separately from any other motion, must describe conduct that violated 11(b)
▪	Must first allow opposing party 21 days to correct challenged document, then file with court (can NOT be filed if opposing party corrects within 21 days)
o	11(c)(3): court can sanction on its own initiative, sua sponte (can order attorney/firm/party to show that conduct has not violated Rule 11(b))
o	11(c)(4): sanction must be limited so that it suffices to “deter repetition of the conduct”
35
Q

What are the three options for responding to complaints?

A

● D has 3 options:

(1) default;
(2) pre-answer motion;
(3) answer

36
Q

Default Judgment (Rule 55)

A
  • D does nothing – fails to appear/defend (see RESOLUTION WITHOUT TRIAL)
    o why let this happen?
    a) substantive law (i.e. 60% of civil claims for breach of K, i.e. failure to make payments for a loan/credit card – not many defenses to this)
    b) D does not realize he/she possesses a meritorious defense or knows it but can’t afford a lawyer
37
Q

Pre-Answer Motion (Rule 12)

A
  • D must respond to substantive allegations of complaint (admit or deny), cases suspended in time until judge decides that motion
    o Can include procedural defenses (i.e. court lacks PJ or SMJ) and/or substantive defenses (i.e. allegations, even if true, fail to state a claim)
    o Does not require party to set forth her version of facts alleged in complaint – requests that the court take some action in regard to the lawsuit
    o Strategy: delay/end lawsuit giving D either temporary/permanent victory early and cheaply
    ▪ Motion requests that court do something
    ▪ If denied D must file an answer – has 14 more days to answer complaint
    ▪ If 12(e) Motion for a More Definite Statement granted D has 14 more days after more definite statement served
    ▪ D must bring all Rule 12 motions together or waives right to bring them up later (unless it’s 12(b)(1) or 12(b)(6))
38
Q

Rule 12(b)

A

o MOTION TO DISMISS – TYPES OF DEFENSES
▪ 12(b)(1) – lack of SMJ (if found, case is dismissed)
▪ 12(b)(2) – lack of PJ
▪ 12(b)(3) – improper venue
▪ 12(b)(4) – insufficient process
▪ 12(b)(5) – insufficient service of process
▪ 12(b)(6) – failure to state a claim upon which relief can be granted (dismissal on the merits – Bell, Iqbal)
▪ 12(b)(7) – failure to join a party under Rule 19

39
Q

Which defenses from Rule 12 cant you waive?

A

● 12(b)(1) – lack of SMJ; 12(b)(6) – failure to state a claim; or 12(b)(7) – failure to join a party by failing to assert them in your Rule 12 motion
o Justification: if case is being heard in wrong court (12(b)(1), or no basis for claim (12(b)(6)), court wants to know (b/c waste of time)
o Even if you bring Rule 12 motion and exclude one of these, you can still raise the defense in your answer, motion for judgment on the pleadings (12(c)), or at trial

40
Q

Rule 12 (h)(3)

A

● if court determines at any time that it lacks SMJ, must dismiss the case -> lack of SMJ never goes away as a defense

41
Q

Rule 12(c)

A

o MOTION FOR JUDGMENT ON THE PLEADINGS – after all pleadings, “match up” allegations in complaint and answer – court decides if judgments should be entered; resolves a case in rare circumstances in which parties’ pleadings reveal agreement about the relevant facts and only the applicable law is in question
▪ Looks at complaint and answer → based on that info, party can move for judgment on the pleadings
● If D admits all allegations, P would say “based on complaint and answers, I win”
▪ Accepts all factual allegations as true; acts as 12(b)(6) for P, judgment on the merits
▪ Often in breach of K cases
● Ex: P alleges breach, D admits all allegations with illegitimate defense
▪ Brought in place of Summary Judgment (Rule 56) when don’t need outside pleadings
Different from summary judgment because no discovery/evidence

42
Q

Rule 56

A

Summary Judgment

43
Q

Rule 12 (d)

A

o RESULT OF PRESENTING MATTERS OUTSIDE THE PLEADINGS
▪ Connected to 12(c) or 12(b) – D moving to dismiss, included some evidence/document with motion. If there’s small factual dispute/small world of facts, D might include those facts in motion to dismiss or 12(c) motion → court will then give P chance to submit documents/evidence in response → Like a quick summary judgment motion

44
Q

Rule 12 (e)

A

o MOTION FOR A MORE DEFINITE STATEMENT – if pleading is so vague or ambiguous that party cannot reasonably prepare a response; motion must be made before filing responsive pleading and must point out defects complained of and details desired
▪ If court orders more definite statement, party has 14 days to obey
▪ Rarely used because post Twombly/Iqbal usually D will use 12(b)(6) to dismiss
▪ Bell if you’re not going to dismiss, then provide more definite statement (i.e. give more information)

45
Q

Rule 12(f)

A

o 12(f): MOTION TO STRIKE – motion not to dismiss the whole complaint, but part of it; challenges part of pleading that fails under substantive law, even though rest of pleading states claim or defense (like a deletion)
▪ Court may also remove “redundant, immaterial, impertinent, or scandalous matter”
● Court can do this (1) on its own; or (2) on motion made by a party
o Motion by party must be made before response, or if no response is allowed, within 21 days after being served with pleading
● Strategy: read to jury and could bias, on public record when case filed
▪ May happen if there’s information in complaint that’s particularly embarrassing
● Press can see complaints (public record)
● Can be read to the jury (could bias them)
▪ Courts view this motion as a waste of time

46
Q

Rule (g)(2)

A

party may not join another Rule 12 motion if omitted from earlier motion

47
Q

Rule 12 (h)

A

waiving defenses

48
Q

Rule 8(b)

A

ANSWER
o D has to admit or deny allegations in complaint (Rule 8(b))
o D can also include counterclaim in answer (which functions as own suit/claim against P)
▪ P then has 21 days to either dismiss or answer that claim, etc.
o D doesn’t always answer with proper specificity: See Zielinski case
o Responsive pleading – If D does not make a pre-answer motion or court denies pre-answer motion; D must go through allegations in the complaint and admit or deny each one
o D must deny only those allegations that he actually disputes
o Deals with all allegations (unlike motions); can bring Rule 12 motions here too
o If D raises lack of SMJ here (as opposed to in motion to dismiss), they are not asking the court to do anything – just means it can be brought up again later (preserving it as a defense, not obligated to use it)
▪ D raises as defense that P and D are not from different states - subject matter jurisdiction
● Why not use that as a 12(b) motion?
o Maybe because D doesn’t have enough information
o Maybe D doesn’t think it’s that strong a claim
o Want to preserve opportunity to make this motion at later time
o Defenses are preserving motions for later time but not acting court to act on it right away

49
Q

Rules regarding timing?

A

▪ 12(a)(1)(A)(i): 21 days after service of summons/complaint OR 60 days if D agreed to waive service under 4(d)
● If D is not within US, has 90 days
▪ 12(a)(2): US, federal agency, or federal officer has 60 days
▪ If filed PRE-ANSWER MOTION:
● 12(a)(4)(A): 14 days within court denying/postponing motion
● 12(a)(4)(B): 14 days after filing of more definite statement

50
Q

Rule 8 (b)(6)

A

o allegation that is not denied is deemed admitted (not denied = admitted)
▪ EXCEPT: not required to deny allegations of damage amounts

51
Q

Rule 8 (b)(3)

A

o can deny all or part of a complaint, must specify which part D is denying (must be in good faith) - courts condemn casual blanket denials

52
Q

General Denial

A

▪ denies every allegation of complaint, including jurisdictional grounds
● Rarely acceptable, ineffective denial may count as admission, unlikely that court will allow party to amend
● More specific version denies every allegation of specific paragraph/group of paragraphs
● Extremely few cases where D can plausibly deny all allegations (or all not relating to names/citizenship of the parties)
o Still, parties do this when they mean to deny major allegations
o Courts condemn casual blanket denials because forces parties to spend time figuring out what the real items in dispute are
▪ D who does this could be subject to Rule 11 inquiry

53
Q

Rule 8 (b)(5) - Insufficient Information

A

lacking info/knowledge treated as denial
● Lacking knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial

54
Q

Affirmative Defenses - Rule 8 (c)

A

introduce new facts that prevent recovery
▪ Non-exhaustive list, including: duress, contributory negligence, res judicata, statute of limitations, assumption of risk
▪ If fail to include defense in answer, defense is waived – evidence about it is inadmissible

55
Q

Rule 8 (d)

A

Party may state alternative claims or defenses, can be consistent or inconsistent

56
Q

Amendments - Rule 15

A

possibility of amending is a way of curing deficiencies allows revisions to both parties’ original stories, limits the extent and timing of such changes; amender should have good reason for not getting pleading right first time, and allowing change shouldn’t hurt other side too much (no prejudice)

57
Q

easy amendent

A

allows pleadings to reflect parties’ changed view of case as it develops

58
Q

prejudice

A

idea that at some point other side has to make decisions about how to present its case

59
Q

Rule 15 (a)(1)

A

can amend pleading once, either (A) within 21 days after serving, OR (B) within 21 days after service/receipt of responsive pleading or Rule 12(e), (b), or (f) motion

60
Q

15(a)(1)(A

A

Party gets one free shot to amend their pleading (complaint and answer) without court’s permission within 21 days of serving

61
Q

Courts should “freely give leave when justice so requires”, UNLESS:

A

● (1) Bad faith (undue delay, repeated failure to amend when previously allowed)
● (2) Prejudice (weighs both sides, decides which makes more sense)
● Prior opportunity to amend; bad faith; undue delay; prejudice; futility
● Prejudice must be shown. Prejudice more important. Burden on party opposing motion to show such prejudice.

62
Q

ADD NEW LEGAL CLAIM/THEORY – 15(c)(1)(B)

A

o new claim must be concerned with same conduct, transaction, or occurrence set out in the original claim
▪ Justification: same conduct/transaction/occurrence because of interest in notifying D of what they are alleged to have done; might be unjust to add different type of claim involving different things (original claim must give notice that this new claim could have arisen because D must have notice - can’t throw things from left field at D, would be unjust)

63
Q

ADD NEW PARTY/DEFENDANT – 15(c)(1)(C):

A

o new party must (1) have had notice of original action so won’t be prejudiced; AND (2) knew/should have known that action would have been brought, but for a mistake
▪ Must ALSO satisfy 15(c)(1)(B) – claim to be added by amendment arises from the same conduct/transaction/occurrence; and 4(m) – within 120 days of complaint
▪ Notice can be informal, ex: word of mouth
▪ If prejudice, can’t change party to be sued; harder cases when party wants to change from suing institution to individuals
▪ When original complaint was served, without D, D KNEW that action would have been brought against them if not for a mistake → this would have solved the problem in Zielinski, but it didn’t exist then
● This wouldn’t have solved the problem in Beeck
▪ Easier to dismiss a party than to add one later

Civil Procedure (1 decks)

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