Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

CP > Civ Pro - Module 6 > Flashcards

Civ Pro - Module 6 Flashcards

1
Q

Pleading rule

A

FRCP 8 “Notice Pleading”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Heightened Pleading rule

A

FRCP 9 “With Particularity”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

what rule and subsection gives formal elements of a complaint in federal court

A

FRCP 8 (a)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

3 formal elements of a complaint in federal court

A
  1. Statement of Subject-Matter Jurisdiction;
  2. Statement of Claim
  3. Demand for relief
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

statement of a claim is

A

legal theory of the case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

demand for relief is

A

explanation of what they seek in terms of damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Conley rule/standard

A

A complaint should not be dismissed for failure to state a claim unless it is beyond a doubt that plaintiff can prove no facts that entitle them to relief.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Rule 9a rule statement

A

Except when required to show that the court has jurisdiction, a pleading need not allege:

(A) a party’s capacity to sue or be sued;
(B) a party’s authority to sue or be sued in a representative capacity; or
(C) the legal existence of an organized association of persons that is made a party.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Rule 9b

A

Fraud or Mistake; Conditions of Mind.

A party must state with particularity the circumstances constituting fraud or mistake.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Rule 12b6

A

motion to dismiss for failure to state a claim upon which relief can be granted;

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Post Iqbal Analysis - 3 things

A

more than accusations and conclusions;

more than formulaic recitation of elements;

more than naked assertions.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Iqbal rule

A

“Complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Plausible pleading - revise - just reminders

A

1 The starting point it identifying the elements of the claim.

2 “Well-pled” means the allegations are not conclusory or just a recital of the elements.

3 Dueling inferences seem to cancel each other out unless one is more plausible than another. So need to plead more facts. p.469

  1. Plausible lawyering after Iqbal. pp.471-73, n.7
  2. Emerging trends or themes after Iqbal?
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Meeting the Twombly/Iqbal Plausibility Standard

A

Give sufficient details so court may be convinced duty arose & not be compelled to rely on mere statement there was legal duty.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Entering a Default Judgement

Rule Statement

A

R. 55(a) Entering a Default:

“[C]lerk must enter the party’s default” when party shows failure to plead or defend through affidavit.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Entering a Default

Rule Number

A

R. 55(a)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Default Judgment by the Clerk Rule Statement - green for now, come back to later

A

Clerk must enter judgment for:

amount and costs against a D

if claim is for a sum certain &

P files (1) request + (2) affidavit

=amount due (2-stages).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Default Judgment by the Clerk Rule

A

R. 55(b)(1)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

R. 55(b)(2)
return to this

A

Default Judgment by the Court:

If sum not certain, party must apply for default judgment, and if opposing party made an appearance, that party must be served with written notice before the default hearing.

Courts have discretion and generally disfavor default judgments, instead encouraging decisions on the merits.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Default Judgment by the Court Rule

A

R. 55(b)(2)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Resolution Without Trial – Rule 55 Default Process

A

STEP #1
Get default ENTERED first - 55(a) - (declaration that defendant failed to answer/show up),

STEP #2
then go for default JUDGMENT - 55(b) - entitled to a REMEDY BY THE COURT)

STEP #3
then ESTABLISH DAMAGES or other remedies - 55(b)(1) or (2)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Default nuances

A

Entry of default under R.55(a) means a notation on the docket, a clerk-kept list of filings, etc. P must file an affidavit to get it started.

Impact of defaulting= D admits facts alleged in the complaint, but court must decide the legal impact (phantom 12b6). p. 486

Damages must be fixed before a default judgment can be entered. If a sum certain, then the clerk can enter it; if not a judge.

If a D has in some way appeared, then entitled to 7-days written notice of a hearing on entering default judgment. FRCP 55(b)(2).

Damages must be fixed before a default judgment can be entered. If a sum certain, then the clerk can enter it (e.g. amount set out in K, but not attorney’s fees).

Due process requires service under Mullane (Chap. 10), so court will require that the record show proper service before deciding a default motion. Otherwise, judgment could be set aside under FRCP 55(c) and 60(b)(4).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Entry of Default 55c

A

FRCP 55c for “good cause” = clerical errors, attorney vacation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Default Judgment 55b

A

55c set aside under 60b=

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

60b1

A

60b1—mistake, inadvertence, surprise, excusable neglect; limited to 1 year under 60c1

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

60b3

A

60b3—fraud; limited to 1 year under 60c1

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

60b4

A

relief if “judgment is void”

(e.g., no PJ, no service of process)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What is a 12(b)1 motion to dismiss

A

Rule 12(b)(1): Lack of subject matter jurisdiction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

what is a 12(e) motion

A

12(e) – MORE DEFINITE STATEMENT

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

what is a 12(f) motion

A

12f TO STRIKE SCANDALOUS, IMPERTINENT MATERIAL

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

How are 12e & 12f different from 12(b) motions?

A

12(b) – trying to DISMISS a claim,
12(e),(f) – trying to CHANGE the complaint

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

what is a FRCP 12(b)2 motion

A

Rule 12(b)(2): Lack of personal jurisdiction;

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

what is a FRCP 12(b)3 motion

A

Rule 12(b)(3): Improper venue;

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

what is a FRCP 12(b)4 motion

A

Rule 12(b)(4): Insufficiency of process;

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

what is a FRCP 12(b)5 motion

A

Rule 12(b)(5): Insufficiency of service of process;

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

what is a FRCP 12(b)6 motion

A

Rule 12(b)(6): Failure to state a claim upon which relief can be granted.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

what is a FRCP 12(b)7 motion

A

Rule 12(b)(7): Failure to join a necessary party.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Which 12b motions are waivable?

A

12(b)(2) PJ
12b3 Venue
12b4 Insufficient process
12b5 Insufficient service

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Rule 12(g) & 12(h) Waiver Trap

A

Rule 12(b)(1): SMJ can be raised anytime, even on appeal.

Rule 12(b)(2)-(5) are waivable: they must be raised in the defendant’s first responsive pleading, or they are lost forever.

Rule 12(b)(6 failure to state a claim)&(7 failure to join a necessary party): Can be raised until the end of trial.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Rule 12g Rule statement

A

Rule 12(g): Joining Motions.
A motion may be joined by any other motion allowed by R12.

A party that makes a motion under this rule cannot make an additional defense or objection that was omitted from an earlier motion, except those allowed by 12h (12b2-5).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Rule 12 H rule statement - three things

A

Waiving 12b2-4:
12b2-5 defenses are waived when a party omits it from a motion or fails to make the motion.

Joining ok:
A party may raise a 12b6 (failure to join necessary parties) or 12b7 ( failure to state a defense to a claim) in a pleading, by motion, or at trial.

SMJ at any time:
If the court determines at any time that it lacks subject-matter jurisdiction [12b1], the court must dismiss the action.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

If 12f granted

A

stricken material is no longer part of the record.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Four Corners of the complaint doctrine

A

court will not look beyond the pleadings for facts, but can do so for law.

Furthermore, court must take the non-conclusory allegations of fact as true, but never must take legal conclusions as true.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

12b 2-5 analysis reminders

A

12b2-5 should be obvious at time of filing.

12b6 and 12b7 are more enmeshed with substantive merits of the lawsuit, so they require some additional analysis and time. p. 503

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

When must D usually file its answer? rule statement

A

21 days “after being served” 12a1Ai

46
Q

When must D usually file its answer? RULE number

A

12a1A

47
Q

If D filed a motion to dismiss, and the court rules on the motion 1 year later, when is Answer due?

A

14 days after notice of ct’s action 12a4A

48
Q

motion to dismiss answer due rule number

A

12a4A

49
Q

What are D’s obligations in the Answer (R.8b)?

A

8b1A—set out defenses to each claim in “short & plain terms”(including affirmative defenses)
8b1B—admit or deny the allegations in the complaint or
8b5—state lack of “knowledge or information to form a belief about the truth of an allegation…”—which has the effect of a denial.

50
Q

motion to dismiss answer due rule statement

A

12a4A

parties have 14 days to serve a responsive pleading after the court’s action on a motion or, when court granted a motion for more definite statement, 14 days after the more definite statement is served.

51
Q

What is the effect of failing to deny an allegation?

A

Allegation is admitted if a responsive pleading was required. 8b6. Doesn’t apply to one for an amount in damages.

52
Q

Reis test elements: 3 parts

A

3-part test:
Appropriately pled;
Adequately pled;
Sufficiency of defenses under 12b6 standard.

p. 507

53
Q

Aside from those 19 listed, how can you tell if something should be pled as an affirmative defense?

A

Analysis includes
(1) whether the matter is necessary or extrinsic element to P’s cause of action;
(2) which party has better access to the relevant evidence; and
(3) policy considerations:
Prevention of unfair surprise—facts here?
If no surprise, should technical failure to comply with 8c be fatal?

54
Q

Affirmative defenses - 8c

A

accord and satisfaction;

  • arbitration and award;
  • assumption of risk;
  • contributory negligence;
  • duress;
  • estoppel;
  • failure of consideration;
  • fraud;
  • illegality;
  • injury by fellow servant;
  • laches;
  • license;
  • payment;
  • release;
  • res judicata;
  • statute of frauds;
  • statute of limitations; and
  • waiver.
55
Q

What if, upon an answer to counter or crossclaim, there are new factual allegations

A

Responsive pleading not required (deemed denied) or
If court-ordered, P may file a Reply to the Answer.

56
Q

R15 - ADD DETAILS OF SUBSECTIONS

A

II. Reasonable Inquiry—R. 11b/11b3
III. Changes in the Law—R. 11b2
IV. Proper Purpose—R. 11b1
V. Procedure for Rule 11 Sanctions

57
Q

R11 - add detail

A

Focuses on paperwork

58
Q

R. 11 “objective negligence” standard:

A

Don’t need bad faith, and good faith is not a defense.

59
Q

R15 - ADD DETAILS OF SUBSECTIONS

A

II. Reasonable Inquiry— R. 11b/11b3

60
Q

R15 - ADD DETAILS OF SUBSECTIONS

A

III. Changes in the Law—R. 11b2

61
Q

R15 - ADD DETAILS OF SUBSECTIONS

A

IV. Proper Purpose—R. 11b1

62
Q

R15 - ADD DETAILS OF SUBSECTIONS

A

V. Procedure for Rule 11 Sanctions

63
Q

Reasonableness under R11R. 11b/11b3

A

Reasonableness is always a question of balancing the cost in time and resources of the pre-filing inquiry against the likely benefits.

64
Q

Reasonable under circumstances analysis

A

1 Complexity of factual and legal issues:
2 Extent to which pertinent facts under control of opponents or 3rd parties;
3 Extent attorney had to rely on client for facts;
4 Whether case accepted from another attorney ;
5 Resources reasonably available to the attorney ;
6 Extent to which atty was on notice that further inquiry might be appropriate.

65
Q

11b and monetary sanctions

A

11b2 monetary sanctions never appropriate against clients for not knowing the law.

66
Q

what is existing law under 11 b

A

controlling law in the forum circuit (no general U.S. law).

67
Q

what is adverse law under 11b

A

Attorney must disclose authority “directly adverse” to legal position.

68
Q

Proper Purpose Rule

A

11b1

69
Q

Sanctions rules

A

R. 11c covers sanctions, but courts have alternative mechanisms for controlling litigant conduct, and the use of these has risen as amendments to R. 11 and diluted its impact.

26 and 27 include discovery.

70
Q

Rule 11b

A

…

71
Q

Rule 11c

A

Sanction motions

72
Q

Ct’s Inherent Power (contempt)

A

Triggered by bad faith.
Applies to all litigation conduct.

73
Q

R. 11 nuances - for review

A

No bad faith required (good heart, empty head negligence standard).

Only applies to papers presented to a court.

11b1 applies to purpose of atty conduct.

74
Q

Rule 11b statement - four things

A

(b) Representations to the Court.

In pleading to the court, an attorney certifies that the information, belief and knowledge in a pleading/motion was formed after an inquiry reasonable under the circumstances.

The information is not presented for improper purpose.

The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for changing law;

Evidence supports further investigation.

75
Q

When can court impose sanctions

A

A court need not wait for a motion; it can sua sponte impose sanctions.

Must have a hearing to know what being sanctioned for and how to fix.

A court-ordered sanction under 11c3 eliminates the 21-day safe harbor, but does require a show-cause hearing.

76
Q

In what situations can court impose sanctions

A

A court must take extra care in imposing sanctions and confine them to situations like contempt of court.

R.11 does not mandate sanctions b/c it says the court “may” do so.

77
Q

What is included in sanctions

A

Sanctions include everything from a mild reprimand/apology to monetary awards (including atty fees), but must be limited to what suffices to deter repetition of the conduct.

78
Q

28 USC §1927 - reminder

A

Any attorney who multiplies the proceedings in any case unreasonably and vexatiously may be required to pay excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

Narrower than R. 11 b/c applies only to conduct that “unreasonably and vexatiously…multiplies” the proceedings.

79
Q

Differences between contempt of court powers - reminder??

A

…

80
Q

Procedure for R. 11 Sanctions

A

Ordinarily a party initiates by filing a motion.

The motion must be separate from other motions.

However, the first step before filing is to serve the offender 21 days before filing with the court (“safe-harbor” provision).

81
Q

Rule for What Counts in a Countdown

A

6

82
Q

PLEADING RULES REVISE

A

Without Leave “as a matter of course”—15a1

83
Q

PLEADING RULES REVISE

A

III. Before Trial with Leave—15a2

84
Q

PLEADING RULES REVISE

A

IV. During & After Trial with Leave—15b

85
Q

PLEADING RULES REVISE

A

Claims or Defenses After the S/L – 15c1B

86
Q

PLEADING RULES REVISE

A

Parties After the S/Limitations Period—15c1C

87
Q

Rule 6 - what days count under court’s timing?

A

Count every day including intermediate Sat, Sunday and legal holidays unless the weekend or holiday is the last day of the period. Don’t count the day of the event that triggers the period and includes the last day of the period.

88
Q

15a2: Amendments before trial with leave rule statement

A

After the 1st amendment as a matter of course or after the time periods, the amending party must:
either get consent from the opposing party or
must seek leave from the court.

89
Q

15a3 Time to Respond [to the amended pleading] rule statement

A

Either:

14 days after service of the amended pleading

or

Within the time remaining to respond to the original pleading (e.g., 21 days under 12a or 60 days after complaint sent to D under 4d3).

90
Q

When does rule 15a2 grant amendments

A

Leave to amend shall be freely given “when justice so requires”

91
Q

15a2 grant amendments analysis considers:

A

Courts weigh:
Reason - Reason for amendment;
Diligence - Amending party’s diligence;
If opposing party says they are prejudiced - Party opposing amendment has burden of showing Prejudice to themselves;
Futility - Whether amendment is futile as a matter of law;
Prior amendments - The amending party’s prior amendments.

Time - The earlier the amendment is before trial, the better.

92
Q

Amending Claims and Defenses After the Statute of Limitations rule number

A

15c1B

93
Q

What is the STANDARD for court’s granting leave to amend under 15a2?

A

The trial judge’s discretion.

94
Q

Reasons for amendment:

A

Courts routinely give leave to amend:

for a new legal theory for a claim or defense,

any evidence of bad faith may be fatal. p. 563

95
Q

Party’s diligence:

A

Courts are less forgiving of late discovery of new facts, but unfair to punish the client.

96
Q

Prejudice to opposing party:

A

“Merits prejudice” is not undue prejudice. Instead cts focus on “preparation prejudice”, i.e. prejudice to preparing to defend in collecting and presenting evidence. pp. 563-64

97
Q

Futility:

A

Court must analyze an amendment under a 12b6 standard.

If an amendment adds a claim that is not supported by law, the court should not give leave. (p. 565-66)

98
Q

Amendment after dismissal:

A

Amendment is intended to cure deficiencies, such as 12b6 dismissals.

If court grants a 12b6 first, it usually will do so “with leave to amend.” If not, atty should immediately file a motion to amend asap after 12b6 granted. p. 566

99
Q

Amendments During and After Trial -REVIEW

A

Implied consent rests on NOTICE to the opposing party.

Implied consent may be found when evidence is offered to an unpleaded issue. Otherwise, the opposing party should object to the evidence as irrelevant.

Implied consent will not apply if evidence is offered that is relevant to two issues—both one issue raised in the pleadings and one outside.

Rule 16e addresses final pretrial orders and is issued right before trial. It identifies the issues for trial and the evidence the parties will offer. 16e orders can only be modified “to prevent manifest injustice.”

However, 15b amendments are more lenient, and 10th cir used 15b’s goal of “presenting the merits” to control over the 16e order. p. 574

100
Q

15c: Amending Claims and Defenses After the Statute of Limitations rule statement

A

The time of the amendment will “RELATE BACK” to the time of the original time the lawsuit was filed BEFORE THE STATUTE OF LIMITATIONS RAN – PROVIDED THAT IT ARISES OUT OF THE SAME “CONDUCT, TRANSACTION, OR OCCURRENCE” 15c1B

101
Q

IDEK what this is

A

If a complaint plausibly alleges facts that would entitle the P to relief, 12b6 failure to state a claim should be denied even if the best legal theory is not stated in the complaint.

102
Q

Relation Back requirements:

A

depends on if claim is transactionally related (STOO= same transaction or occurrence).

Focus on notice rather than STOO: a D should be prepared to defend any legal theory that could be supported by the allegations.

Leave to amend under 15a is conceptually distinct from relation back under 15c.
Undue delay is a factor for 15a but not 15c. p. 580.

103
Q

How do courts determine whether a claim “arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading”(15c1B)?

A

Transactional test (same transaction or occurrence),

but for tests, and

logical relationship (does it make sense)

104
Q

Amending Parties After the Limitations Period Rule statement

A

R. 15 (c) Relation Back of Amendments.
An amendment to a pleading relates back to the date of the original pleading when:

the amendment changes the party or the naming of the party against whom a claim is asserted when the claim arose out of STOO, party to be brought by amendment

(i) received notice of the action; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.

105
Q

Amending Parties After the Limitations Period Rule number

A

R. 15 (c)

106
Q

What mistakes are accepted by court?

A

Misnomer mistakes—Ok if a P misnames or misidentifies a party but correctly serves the party—in effect a “typo” that does not prejudice the D. p. 593

107
Q

Court does not allow what kind of mistake?

A

Deliberate mistakes—If P knowingly choses not to name a party, this is not a “mistake” under the rule, but a deliberate choice. p. 593.

108
Q

Can you name an anonymous party?

A

Courts are in flux about naming “John Doe” defendants.

The general rule is that P’s ignorance is not a “mistake” (so no relation back), but after Krupski, some courts have allowed it. pp.594-96

109
Q

15c1C: Relation Back of Parties

A

NOTICE is the theory behind both relation back of claims or defenses and relation back of amendments that change parties.

Informal notice OK if party knew or should have known about the pleader’s mistake within the statute of limitations time period.

Supplemental Pleadings under 15d –for events taking place after pleading v. amendments for events before (i.e., P sues employer, and after filing is fired, can then add claim for retaliation.)

Misnomer mistakes—Ok if a P misnames or misidenties a party but correctly serves the party—in effect a “typo” that does not prejudice the D. p. 599

110
Q

12b6 motion is

A

failure to state a claim

CP (23 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions