Civ Pro - Module 6

Question 1

Pleading rule

Answer 1

FRCP 8 “Notice Pleading”

Question 2

Heightened Pleading rule

Answer 2

FRCP 9 “With Particularity”

Question 3

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

Answer 3

FRCP 8 (a)

Question 4

3 formal elements of a complaint in federal court

Answer 4

1. Statement of Subject-Matter Jurisdiction;
2. Statement of Claim
3. Demand for relief

Question 5

statement of a claim is

Answer 5

legal theory of the case

Question 6

demand for relief is

Answer 6

explanation of what they seek in terms of damages

Question 7

Conley rule/standard

Answer 7

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.

Question 8

Rule 9a rule statement

Answer 8

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.

Question 9

Rule 9b

Answer 9

Fraud or Mistake; Conditions of Mind.

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

Question 10

Rule 12b6

Answer 10

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

Question 11

Post Iqbal Analysis - 3 things

Answer 11

more than accusations and conclusions;

more than formulaic recitation of elements;

more than naked assertions.

Question 12

Iqbal rule

Answer 12

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

Question 13

Plausible pleading - revise - just reminders

Answer 13

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

7. Plausible lawyering after Iqbal. pp.471-73, n.7
8. Emerging trends or themes after Iqbal?

Question 14

Meeting the Twombly/Iqbal Plausibility Standard

Answer 14

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

Question 15

Entering a Default Judgement

Rule Statement

Answer 15

R. 55(a) Entering a Default:

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

Question 16

Entering a Default

Rule Number

Answer 16

R. 55(a)

Question 17

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

Answer 17

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).

Question 18

Default Judgment by the Clerk Rule

Answer 18

R. 55(b)(1)

Question 19

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

Answer 19

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.

Question 20

Default Judgment by the Court Rule

Answer 20

R. 55(b)(2)

Question 21

Resolution Without Trial – Rule 55 Default Process

Answer 21

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)

Question 22

Default nuances

Answer 22

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).

Question 23

Entry of Default 55c

Answer 23

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

Question 24

Default Judgment 55b

Answer 24

55c set aside under 60b=

Question 25

60b1

Answer 25

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

Question 26

60b3

Answer 26

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

Question 27

60b4

Answer 27

relief if “judgment is void” (e.g., no PJ, no service of process)

Question 28

What is a 12(b)1 motion to dismiss

Answer 28

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

Question 29

what is a 12(e) motion

Answer 29

12(e) -- MORE DEFINITE STATEMENT

Question 30

what is a 12(f) motion

Answer 30

12f TO STRIKE SCANDALOUS, IMPERTINENT MATERIAL

Question 31

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

Answer 31

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

Question 32

what is a FRCP 12(b)2 motion

Answer 32

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

Question 33

what is a FRCP 12(b)3 motion

Answer 33

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

Question 34

what is a FRCP 12(b)4 motion

Answer 34

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

Question 35

what is a FRCP 12(b)5 motion

Answer 35

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

Question 36

what is a FRCP 12(b)6 motion

Answer 36

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

Question 37

what is a FRCP 12(b)7 motion

Answer 37

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

Question 38

Which 12b motions are waivable?

Answer 38

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

Question 39

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

Answer 39

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.

Question 40

Rule 12g Rule statement

Answer 40

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).

Question 41

Rule 12 H rule statement - three things

Answer 41

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.

Question 42

If 12f granted

Answer 42

stricken material is no longer part of the record.

Question 43

Four Corners of the complaint doctrine

Answer 43

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.

Question 44

12b 2-5 analysis reminders

Answer 44

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

Question 45

When must D usually file its answer? rule statement

Answer 45

21 days “after being served” 12a1Ai

Question 46

When must D usually file its answer? RULE number

Answer 46

12a1A

Question 47

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

Answer 47

14 days after notice of ct’s action 12a4A

Question 48

motion to dismiss answer due rule number

Answer 48

12a4A

Question 49

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

Answer 49

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.

Question 50

motion to dismiss answer due rule statement

Answer 50

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.

Question 51

What is the effect of failing to deny an allegation?

Answer 51

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

Question 52

Reis test elements: 3 parts

Answer 52

3-part test: Appropriately pled; Adequately pled; Sufficiency of defenses under 12b6 standard. p. 507

Question 53

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

Answer 53

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?

Question 54

Affirmative defenses - 8c

Answer 54

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.

Question 55

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

Answer 55

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

Question 56

R15 - ADD DETAILS OF SUBSECTIONS

Answer 56

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

Question 57

R11 - add detail

Answer 57

Focuses on paperwork

Question 58

R. 11 “objective negligence” standard:

Answer 58

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

Question 59

R15 - ADD DETAILS OF SUBSECTIONS

Answer 59

II. Reasonable Inquiry— R. 11b/11b3

Question 60

R15 - ADD DETAILS OF SUBSECTIONS

Answer 60

III. Changes in the Law—R. 11b2

Question 61

R15 - ADD DETAILS OF SUBSECTIONS

Answer 61

IV. Proper Purpose—R. 11b1

Question 62

R15 - ADD DETAILS OF SUBSECTIONS

Answer 62

V. Procedure for Rule 11 Sanctions

Question 63

Reasonableness under R11R. 11b/11b3

Answer 63

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

Question 64

Reasonable under circumstances analysis

Answer 64

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.

Question 65

11b and monetary sanctions

Answer 65

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

Question 66

what is existing law under 11 b

Answer 66

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

Question 67

what is adverse law under 11b

Answer 67

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

Question 68

Proper Purpose Rule

Answer 68

11b1

Question 69

Sanctions rules

Answer 69

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.

Question 70

Rule 11b

Answer 70

...

Question 71

Rule 11c

Answer 71

Sanction motions

Question 72

Ct’s Inherent Power (contempt)

Answer 72

Triggered by bad faith. Applies to all litigation conduct.

Question 73

R. 11 nuances - for review

Answer 73

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.

Question 74

Rule 11b statement - four things

Answer 74

(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.

Question 75

When can court impose sanctions

Answer 75

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.

Question 76

In what situations can court impose sanctions

Answer 76

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.

Question 77

What is included in sanctions

Answer 77

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.

Question 78

28 USC §1927 - reminder

Answer 78

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.

Question 79

Differences between contempt of court powers - reminder??

Answer 79

...

Question 80

Procedure for R. 11 Sanctions

Answer 80

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).

Question 81

Rule for What Counts in a Countdown

Answer 81

6

Question 82

PLEADING RULES REVISE

Answer 82

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

Question 83

PLEADING RULES REVISE

Answer 83

III. Before Trial with Leave—15a2

Question 84

PLEADING RULES REVISE

Answer 84

IV. During & After Trial with Leave—15b

Question 85

PLEADING RULES REVISE

Answer 85

Claims or Defenses After the S/L – 15c1B

Question 86

PLEADING RULES REVISE

Answer 86

Parties After the S/Limitations Period—15c1C

Question 87

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

Answer 87

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.

Question 88

15a2: Amendments before trial with leave rule statement

Answer 88

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.

Question 89

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

Answer 89

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).

Question 90

When does rule 15a2 grant amendments

Answer 90

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

Question 91

15a2 grant amendments analysis considers:

Answer 91

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.

Question 92

Amending Claims and Defenses After the Statute of Limitations rule number

Answer 92

15c1B

Question 93

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

Answer 93

The trial judge’s discretion.

Question 94

Reasons for amendment:

Answer 94

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

Question 95

Party’s diligence:

Answer 95

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

Question 96

Prejudice to opposing party:

Answer 96

“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

Question 97

Futility:

Answer 97

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)

Question 98

Amendment after dismissal:

Answer 98

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

Question 99

Amendments During and After Trial -REVIEW

Answer 99

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

Question 100

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

Answer 100

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

Question 101

IDEK what this is

Answer 101

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.

Question 102

Relation Back requirements:

Answer 102

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.

Question 103

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)?

Answer 103

Transactional test (same transaction or occurrence), but for tests, and logical relationship (does it make sense)

Question 104

Amending Parties After the Limitations Period Rule statement

Answer 104

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.

Question 105

Amending Parties After the Limitations Period Rule number

Answer 105

R. 15 (c)

Question 106

What mistakes are accepted by court?

Answer 106

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

Question 107

Court does not allow what kind of mistake?

Answer 107

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.

Question 108

Can you name an anonymous party?

Answer 108

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

Question 109

15c1C: Relation Back of Parties

Answer 109

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

Question 110

12b6 motion is

Answer 110

failure to state a claim