Civ Pro II Final

Question 1

FRCP 8(a)2 Complaint

Answer 1

A pleading that sates a claim for relief must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Distinguishing, claims, facts, and bald conclusions of law

Question 2

Twombly

Answer 2

Reinterpretation of conley, no set of facts language.

PER FRCP 8 and 12b, claim need not be probably but plausible.

Plausible as enough facts to raise reasonable expectations that discovery will reveal sufficient evidence

Question 3

Spectrum

Answer 3

Possible–>Plausible–>Probably

Question 4

Iqbal

Answer 4

Twombly plausible standard applies in all civil cases.

Courts are supposed to accept factual allegations as true at pleading stage.

Threadbare facutal allegations need not be presumed true

Dissent: Major improperly equated plausible with probable

Question 5

Webb

Answer 5

Tennessee supreme court rejects twiqbals standards

Question 6

American nurses

Answer 6

Dismissimal improper if glimmering of viable legal theory

need not set forth complete and convincing picture of claims

Question 7

Notice Pleading 9(b)

Answer 7

If alleging fraud or mistake a party must state with particularity the circumstances constituting fraud of mistake. Malice, intent, knowledge, and other conditions of a persons mindset may be alleged generally

Question 8

Motion to Dismiss FRCP 12(b6)

Answer 8

failure to state a claim upon which relief can be granted

Question 9

Demurrer Cal CCP 430.10

Answer 9

Hybrid of motion to dismiss and motion for more definite statement

Question 10

Answer 8(b)

Answer 10

1) admit of deny allegations
2) general and specific denials made in good faith
3) Can deny part of allegation
4) Party that lacks knowledge or information sufficient to form a beleif about the truth of an allegation must state so.
i) has the effect of a denial
5) Allegations not denied are deemed admitted
6) affirmative defenses, must be stated in order to be admitted

Question 11

Frcp 15 (a) 
Amendments, by right stipulation and leave of court

Answer 11

Amendments, by right stipulation and leave of court

i) can amend once 21 after service
ii) with other party’s written consent or . or courts leave

Limited grounds to deny leave to amend dilatory motive and undue prejudice

Question 12

FRCP 15 (c) Amendments, by right stipulation and leave of court

Answer 12

An amendment to a pleading relates back to the date of the original pleading filed

Question 13

FRCP 15 (d) Amendments, by right stipulation and leave of court

Answer 13

On motion and reasonable notice, the court may permit a party to serve a supplemental pleading setting out any transaction that happened after the date of the pleading to be supplemented. Court may permit supplementation even though the original pleading is defective.

Generally granted unless it causes undue delay, prejudice, or made in bad faith

Due process: finality/accuracy v. efficiency

Question 14

FRCP 11 Deterring Frivolous pleadings

Answer 14

1) All pleadings, motions and other papers submitted to the court must be signed
2) does not need to be verified
3) by subbmitting a paper to the court:

Attorney of prp per certifies to the best of his knowledge information and beleif that:

1) Factual contentions are warranted by existing law or propose a non frivoulous change in law.
2) Factual conentions have or will likely ahve evidentiary support
3) cant be used for improper purpose like harrassment or unnecessary delay, or needlessly increast the cost of litigation

Duty not to persis with pleading contentions for which no evidentiary support found

21 day safe harbor provision to withdraw challenge pleading

Question 15

Sanctions

Answer 15

1) Court can impose sanctions on its own via an OSC
2) Motions for sanctions does not need to be filed with the court, but served on the other party and give them a chance to correct.
3) Attorney must show evidence that he tried to fix it out of court, and court was the last step int he process.

Hadges: an attorney may rely upon clients objective reasonable representations.

Question 16

SLAPP

Answer 16

Strategic Lawsuits against Public Participation

Intended to silence/discourage defendants public criticism of plaintiff actions/projects

Question 17

Antislapp motions

Answer 17

1) In CA, D must prove claims related to constitutionally protected activities and that D is likely to prevail on the merits
2) P then must prove legitimate claims
3) Filing Antislapp motion stays discovery
4) 2003 Revision: Antislapp motions are improper if Ps claims are brought in public interest

Question 18

Counter claims

Answer 18

A counterclaim is when D brings a claim against P in the same lawsuit

Question 19

Cross claim

Answer 19

is when a D sues another D

Question 20

FRCP 18(a) Joinder of Claims

Answer 20

A party asserting a claim, counter claim, cross-claim or 3rd part claim may join as many claims as it had against an opposing party

Question 21

FRCP 42(b) Consolidation

Answer 21

A court may order a seperate trial of one or more seperate issues for convieniacne, to avoid prejudice or expedite and economize

Question 22

Rule 42 A Consolidation

Answer 22

if actions before the court involve a common question of law or fact the court may:

1) join for hearing or trial any or all matters at issue in the actions
2) consolidate the actions
3) Issue any other order to avoid unnecessary cost or delay

Question 23

FRCP 13(a) Compulsory counterclaims

Answer 23

Pleading must state as a counterclaim any claim the pleader has against an opposing party if the claim arises out of the transaction or occurrence that is the subject matter of the opposing party;s claim and does not require adding another party who the court cannot acquire JXN

Question 24

Exceptions to 13(a)

Answer 24

1) claim is subject of another pending action

2) no personal JXN

Question 25

Compulsory counterclaim

Answer 25

if logical and immediate relationships

Question 26

Res Judicata under 13(a)

Answer 26

Bring the claim now or forever barred, if claim arose out of same transaction or occurence

Question 27

FRCP 13(b) permissive counter claim

Answer 27

Pleading may state a counterclaim that is not compulsory

Question 28

FRCP 13(g) Crossclaims against a co-party

Answer 28

A pleading may state as a crossclaim any claim by one party against a copart is the claim arises out of the same transation or occurence that is the subject matter of the original action of a counter claim Or if the claim relates to any property that is the SJXN of teh original action Alexander- Cross Claim permitted if logical relationship

Question 29

Permissive and mandatory joinder of parties Historical

Answer 29

Historical limits on joinder of parties: only if damages common to all or caused by all

Question 30

FRCP 20 Permissive Joinder

Answer 30

Permissive joinder parties if logically related to series of occurences or share a common question of law or fact Plaintiff: Persons may join in one action as P;s if they assert any right to releif jointly or severall or arises out of the same transaction, occurence and common question of law or fact to all D's arising in the action

Question 31

FRCP 21 Misjoinder and non joinder of parties

Answer 31

1) not grounds for dismissing an action | 2) court on motion or on its own may add or drop a part or sever any claim against a party

Question 32

FRCP 42(a) Consolidation of lawsuits;

Answer 32

mechanism to help ensure efficieny and uniform judgements If actions involve a common question of law or fact a court may: a) joing for hearing or trial any or all matters at issue b) consolidate the actions c) issue any other orders to avoid unnecessary delay or costs

Question 33

FRCP 19 Required Joinder of parties

Answer 33

Persons required to be joined if feasible: 1) Person who is subject to service of process and whose joinder will not deprive the court of SJXN must be joined if: In that persons absence, court cannot accord complete releif among existing parties OR Persons claims an interest so situated that disposing of action in persons abscence may: 1) Impare or impede perosns ability to protect interest or leave an existing aprt subject to a substantial risk of incurring, double, multiple or inconsistent obligations

Question 34

When Joinder not feasible

Answer 34

1) Proceed with existing parties or dismiss Factors: a) Extent jusgment might prejudice absent part or existing parties b) extent prejudice could be lessened by protective provisions, shaping releif or other measures c) adequacy of judgement d) P would have adequate rememdy if action dismissed for non joinder

Question 35

Cases on Joinder

Answer 35

Bank of Ca-Joinder may not be required if parties are necessary but not indespensable Provedent-great harm to existing parties and remote to absentee

Question 36

FRCP 14 Impleader

Answer 36

When a defending party (3rd party P) may bring in a thrid party: 1) Defending party may bring a claim against nonparty who is or may be liable 2) Defending party must by motion obtain courts leave if filed more than 14 days after serving its original anwser 3) Permissive rather than compulsory

Question 37

4 factors to consider in granting leave to implead 3rd party too inc

Answer 37

1) Whether movant deliberately delayed or was in derelict in filing the motion 2) whether impleading would unduly delay or complicate trial 3) Whether impleading would prejudice the 3rd party D 4) Whether 3rd party complaint state a claim upon which relief can be granted

Question 38

FRCP 24 Intervention (non party joins lawsuit)

Answer 38

1) By right, on timely motion, court must permit any to intervene who: 1) has a right by federal statute 2) Moveants ability to protect interest imparied/impeded 3) intervention by right may be denied if existing parties adequately represent movants interest

Question 39

Permissive intervention

Answer 39

1) May be granted if commons question of law or fact with the main action 2) May be denied if it would unduly delay or prejudice original parties

Question 40

Smuck case

Answer 40

1) Intervention allowed because school board did not adequately represent the intervenor parents interests 2) Interests covered by FRCP 24 not limited to monetary/pecuniary interests

Question 41

FRCP 1367b Supplemental Jxn rules for FRCP 24 and 19

Answer 41

2) Does not require supp jxn over claims by plaintiff against persons made parties under rule 19 or 24

Question 42

Interpleader

Answer 42

Is a civil procedure that allows a plaintiff to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. An interpleader action originates when the plaintiff hold property on behalf of another but does not know to whom the property should be transferred. Often used for disputes under insurance contracts.

Question 43

Interpleader terminiology

Answer 43

Stake, Stakeholder, Claimants 1) Stake=Insurance proceeds, ownershup in land 2) Stakeholder=Part initiating litigation usually P 3) D's having interest in stake=claimants

Question 44

FRCP 22 Rule interpleader

Answer 44

For persons with claims that may expose a p to double or multiple liability may be joined as D;s and required to interplead. 2) No basis for JXN ``` 3) Independant basis of JXN Complete diversity between stakeholder and all claimants. Or Federal question JXN 75K no deposit required ```

Question 45

USC 1335 Stautory interpleader

Answer 45

Allows an individual with a stake claimed by 2 or more claimants to interplead those claimants and bring them into a singular action 2) civil action of interpleader or nature of interpleader 3) 500 or more 4) Minimal diversity JXN 5) Rule interpleader and statutory interpleader Diversity JXn and Personal JXN 6)Stake holder deposits funds/property with court where itnerpleader is filed

Question 46

USC 2631

Answer 46

District court can prohibit/enjoin proceedings in other state/us court

Question 47

State Farm Case

Answer 47

Interpleader device discourages race to judgement against insurer Interpleader not an all purpose bill of peace for claims/parties unrelated to fund

Question 48

Class Action Terms

Answer 48

representative, putative class, class members, certification Class members are represented in class action but not parties If a court does not certify putative class, te class action cannot proceed

Question 49

FRCP 23(a) Certification prerequisites

Answer 49

Numerosity, commonality, typicality, and adequate representation.

Question 50

Numerosity

Answer 50

25 members often too few 40 is often enough

Question 51

Class action dismissal

Answer 51

Subject to court approval to avid sweetheart deals

Question 52

1995 PSLRA

Answer 52

Lead plaintiff requirements in securities fraud class actions

Question 53

General telephone

Answer 53

Lack of commonality between promotion and hiring harms

Question 54

FRCP 23(b) 3 types of class actions

Answer 54

Prejudice or limited fund Injunctive releif damages

Question 55

Castano

Answer 55

Certification improper under FRCP 23b3, predominance and superiority grounds. Question of law or fact common to class members predominate over any questions affecting only individual members and that a class action is superior to other availible methods for adjudicating the controversy

Question 56

FRCP 23C1C

Answer 56

an order that grants or denies class action certification may be altered or amende before final judgement

Question 57

Opt Out

Answer 57

1) At time of certification | 2) at time of settlement

Question 58

Walmart

Answer 58

1) Debates over relevance of disparate imapcts of discrimination classes 2) claims of centralized policy in which gender bias guided personnel choices 3) 5-4 majority holds failure to satisfy FRCP 23a commonality pre-req 4) Unanimous court finds FRCP 23b2 certification improper due to back apy 5) Dissent finds evidence that gender bais suffused defendants corporate culture 6) Walmart and twombly demand something more at preliminary stages of civil litigation

Question 59

Hansberry

Answer 59

Adequate representation when conflicting interests among class members

Question 60

Diversity of citizenship class action

Answer 60

look to representatives not class members

Question 61

Amount in controversy class action

Answer 61

Look to representations not class members

Question 62

2004 CAFA

Answer 62

New aggregation rules and minimal rather than complete diversity

Question 63

Shutts

Answer 63

1) PJXN Opt out suffices affirmative opt in not required | 2) Horizontal choice of law state class members relationship required to apply state law.

Question 64

SOL Class action

Answer 64

Indicidual claim for sol run, seeking certification tolls sol for class members

Question 65

Preliminary Injunctive releif

Answer 65

CCP 527: Preliminary injunctive releif may be granted at any time before judgment Sufficient ground from prelim-inj: Likely to prevail on merits Balance of harms

Question 66

Seaquist case

Answer 66

Use of EPA when seeking a TRO, Party seeking prelim0inj must provide undertaking/security

Question 67

Discovery Devices

Answer 67

Interrogatories, RFPS, RFA, Depos

Question 68

Scope of discovery

Answer 68

Non privileged matter reasonably calculated to lead to admissible evidence

Question 69

Purpose of discovery

Answer 69

to prevent trial by ambush and provide reality check for parties

Question 70

FRCP 37

Answer 70

Motion to compel

Question 71

FRCP 26

Answer 71

Protective order

Question 72

FRCP 26 mandatory disclosures

Answer 72

1) controversial and not used in most states | 2) Unilaterally turn stuff over on your own, even if it hurts client

Question 73

FCP 30 Depos

Answer 73

May propound 35 ROGS on opposing party, responses due in 30 days Duty to investigate extends to information within control fo responding parties

Question 74

FRCP 34 RFP

Answer 74

Must describe with reasonable particularity items to be produced/inspected No specified limit on number of production/inspection Documents to be produced in manner ordinarily maintained

Question 75

3rd party discovery

Answer 75

Subpoenas availible for depos/rfp but not for ROGS/RFA

Question 76

FRCP 36 RFA

Answer 76

No specified limit on number of requests for admissions Duty to supplement discover responses if incomplete/inaccurate in smoe material aspect

Question 77

Defenses to discovery

Answer 77

1) Attorney client privilege 2) Work Product privilege 3) Undue Burden HIckman: work product not absolute privilege for materials prepared i anticipation of litigation

Question 78

IF client insis on witholding discoverable docs/info

Answer 78

Attorney may need to withdraw

Question 79

FRCP 26 & 37

Answer 79

Parties must meet and confer in good faith to resolve discover disputes Losing party often liable for attorneys fees on discovery motions

Question 80

Cine Case

Answer 80

Range of FRCP 37 discovery sanctions includes excluding evidence barring money damages and dismissal

Question 81

Summary Judgment

Answer 81

MSJ looks outside four corners of complaint. Purpose is to pierce the pleading and assess proof to determine need for a trial

Question 82

FRCP 56

Answer 82

Standard that there is a genuine issue of material fact MSJ procedure availible to both parties All or part of MSJ on particular counts or issues i.e. liability, punitive, damages

Question 83

MSJ in lundeen and cross

Answer 83

When material facts hinge on witness credibility

Question 84

Premature MSJ

Answer 84

Court may continue hearing to permit non movant to conduct further discover

Question 85

Celotex

Answer 85

1) MSJ burden of D movant when P-Non movant bears burden of proof at trial 2) DissentL MSJ distinction between intial burden of production and ultimate burden of persuasion 3) Role of MSJ should be understoof in light of FRCP 8/12b notice pleading standard

Question 86

FRCP 56

Answer 86

Party may move for SJ, identyfying each claim or defense 2) Court may grant if movant shows no genuine dispute as to any material favt and movant is entitled to judgment as a matter of law 3) can file at any time until 30 days after close fo all discovery judgments as a matter of law

Question 87

JMOL

Answer 87

Occurs during trial before submitted to jury After other party fully heard at trial

Question 88

RJMOL

Answer 88

Occurs post trial after jury verdict Can only post if jmol was previously done

Question 89

FRCP 50 Standard for JMOL RJMOL

Answer 89

Reasonable jury lacks legally sufficient evientiary basis

Question 90

Galloway

Answer 90

Substantial evidence scintilla test in light of 7th amendment right to jury trial. Need more than scintilla of evidence needs sufficient evidentiary basis

Question 91

FRCP 50(a)

Answer 91

Permits judge after the witnessess testified and evidence presented, to withhold the case from jury and instead enter judgment as a matter of law if the facts are sufficiently clear to require a particular result.

Question 92

FRCP 50(b)

Answer 92

Authorizes similar procedure for cases that have been submitted to the jury once jurors have already reached a verdict. Motion made no later than 28 days after entry of judgment

Question 93

Res Judicata

Answer 93

One judgment will have a binding effect on another Judgment must be final valif and on the merits

Question 94

Claim Preclusion

Answer 94

o A party gets one shot to bring all its claims and alleged damage claims arising from a single set of operative facts, that if a party does not bring certain claims and seek certain damages arising from a single set of operative facts in its first law suit, it will be barred from doing so in a later law suit o Includes counterclaims

Question 95

Transactional test v. Primary right theory

Answer 95

Transactional test- whether claim arose from a single set of operative facts Primary rights theory focuses on the rights allegedly invaded by the defendant. The claimant has a separate claim for each right violated by the defendant. Primary rights theory focuses on the wrongful action of the D – all claims derived from the defendant’s wrongful actions are said to be part of the same cause of action, meaning that they are part of the same primary right The violation of a single primary right gives rise to but a single cause of action.

Question 96

Collateral Estoppel

Answer 96

Applies to matters argued and decided in an earlier lawsuit Judgment must be valid, final, and on the merits Must have been actually litigated and determined in the first case and the issue must also have been essential to the outcome of the case Essentiality: if the finding on this issue had come out the other way, would the judgment have been the same? If yes, then issue is not essential to judgment because judgment does not rest on that issue

Question 97

Defense Preclusion

Answer 97

Second action by original d in which he seeks to raise defenses that were equally availible in the first action but were not advanced there.