Civ Pro Post-Midterm Flashcards
Pleading Standard
Rule 8(a)(2): short and plain statement
Iqbal/Twombly: Two part test:
Disregard any conclusory allegations.
Ask whether plaintiffs complaint is plausible, not just conceivable, in light of judicial experience and common sense
Standard: must be more than possible, less than probable.
Pleading Sanctions
Rule 11:
allows the court to punish a lawyer who filed a pleading when he had no basis to believe that favorable facts or law will emerge as the case progresses.
Only signed pleadings.
Responding to Complaint
Defendant has 21 days after being served to respond, unless they waive service.
If they don’t respond - Default (55a) + Default Judgment (55b)
Pre-Answer Motion
Rule 12(g): if you don’t file 12(b) (2-5) at time of filing, you cannot bring them up later.
Rule 12(h): you can bring up 12(b)(1,6,7) anytime.
Rule 12(e): Motion for More Definite Statement
Rule12(f): Motion to Strike
- Acts like a 12(b)(6) to a single allegation or cluster of allegations
Rule 12(c): Motion for judgment on the Pleadings
Answers
Denials:
- Under 8(b), def must respond to every line of complaint.
- Admit, deny, or lack info
- Failure to deny = admission
Affirmative Defenses:
- Rule 8(c) has a non-exhaustive list
- A defense that defeats liability - complete defense. Plaintiff hasn’t met burden of proof. Must be stated in initial pleading or is waived.
Affirmative defense versus a counterclaim?
Affirmative defense is defendant saying that even if true, we have another way to win or there is no remedy.
Counterclaim is saying “you’re actually the defendant and I’m the plaintiff” - you harmed me!
Reply
In most cases, the pleadings stop with the answer.
But Rule 7(a)(7) allows a judge to order a reply to an answer. When?
- Super complex case and we want to give plaintiff a chance to reply so that issues can be narrowed down.
- An answer to a defendant’s counterclaim.
Amendments
Rule 15(a): If no answer from the defense, you can amend within 21 days OR you have 21 days after answer. OR granted by court “in the interest of justice”/prejudice against opposing parties
Rule 15(c): Relation back of amendments:
- To add claims
- To add or substitute parties on existing claims.
Separation of Trials
Rule 42:
For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.
Relation Back Test
An amendment relates back to the original filing when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out or attempted to be set out in the original pleading.
common nucleus of operative fact
Rule 15 Relation Back Factors
Notice/warning to defendant
Close timing/simultaneous
Move from broader to narrower claim
Pieces of claims overlap
Timing of the motion and ability to do additional discovery
Stages of Discovery
- Meet and confer - (Rule 26(f)).
- Initial Disclosures - (Rule 26 (a)).
- Scheduling (Rule 16).
Not in order necessarily:
4. Request for Production (Rule 34)
5. Interrogatories (Rule 33)
6. Request for Admission (Rule 36).
7. Depositions (Rule 30)
8. If applicable, Medical Records (Rule 35).
Scope of Discovery
Rule 26(b):
allows the parties, without court approval, to seek discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”
Privileged Discovery
Relevant information can be protected from discovery if it is privileged (Rule 26(b)(1)) or if it qualifies for “work product” protection.
Privilege comes from relationships. Holder of privilege must assert it. Waived if you disclose to outside parties.
Trial Preparation Material
- Work product of a lawyer - privileged
Discovery - Proportionality
Rule 26(b)(1)
Must be “proportional to the needs of the case, considering the importance of the issues at stake in the action, amount in controversy, the parties’ relative access to relevant information, the parties resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Court can limit if not proportional or “unreasonably cumulative or duplicative, or can be obtained in some other source that is more convenient, less burdensome, or less expensive or the party seeking discovery has had ample opportunity to obtain the information by discovery.
The court can also limit discovery “to protect a party or person from annoyance, embarrassment, or oppression”. Rule 26c
Basis for Refusing to Comply with Discovery Request
- Irrelevant
- Not proportional to needs of the case
- Burden or expense outweighs benefit (monetary and importance of evidence itself) (Rule 26(b)(1)).
- Unreasonably burdensome, inconvenient, or duplicity (Rule 26(b)(2)).
- Protective order vs annoyance, oppression, or undue burden (Rule 26(c)). Trade secret or confidential commercial information
- Privilege 26(b)(1) & substantive law
- Trial prep materials/attorney work product
What is discoverable?
- Relevant to any claim or defense - 26(b)(1) including to credibility and impeachment
- Required disclosures + insurance info 26(b)(1)
- Waived privilege
-Trial Prep/Attorney work product ONLY IF - substantial need for materials and no other way to obtain without undue hardship Rule 26
Rule 37 Sanction Limits
(1) specifies that sanctions be “not greater than necessary to cure the prejudice” produces by the missing records;
(2) for the imposition of the most serious sanctions, a finding that “the party acted with the intent to deprive another party of the information’s use in litigation.”
Discovery Compliance
Rule 26(g) is the discovery version of Rule 11
Requires that discovery request and responses be signed, and states that the signature implies discovery request are reasonable and discovery responses are complete.
Enforcement mechanism of 26(g) is sanctions under Rule 37
Before filing a motion to compel evidence…
- Parties must certify that they have met and conferred
TEST: A spoliation sanction is proper where:
A party has a duty to preserve evidence because it knew or should have known that litigation was imminent, and
The adverse party was prejudiced by the destruction of evidence.
Spoliation
Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in a pending or reasonably foreseeable litigation.
Whether to sanction/amount under Rule 37 the court considers
The degree of culpability of the party who lost or destroyed the evidence, and
The degree of actual prejudice to the other party.
Involuntary Dismissal
Rule 41(b): provide for an involuntary dismissal “if the plaintiff fails to prosecute”
Plaintiff’s version of default used to push the litigation along.
Judge can raise sua sponte.
Voluntary Dismissal
Rule 41(a)
Arbitration
Unlike a mediator, an arbitrator decides a dispute after having heard from both sides
Main problems:
Mandatory pre-dispute arbitration agreements: any kind of service you want and many employment contracts - agrees to arbitration before any dispute arises. Companies can build relationships with arbitrators - not fair.
Very hard to appeal decisions. Completely binding unless there was fraud or something of that nature.
Factors: speed, cost, procedure, confidentiality, decision-makers.
Summary Judgment
Rule 56 provides that “the court shall grant summary judgment if the movant shows that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.”
Either party or judge can raise.
Summary Judgment Test
No genuine dispute of material fact AND movant entitled to judgment as a matter of law = no reasonable jury could find for nonmovant.
Celotex Trilogy:
+ burdens of proof at motion for SJ must match those at trial (Celotex).
+ all evidence and justifiable inferences for nonmovant (Anderson)
+ to raise a genuine dispute more than a “metaphysical doubt” about the evidence/more than a “scintilla” = something real (Matsushita)
