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Capstone > Civ Pro Pre-Trial and Trial > Flashcards

Civ Pro Pre-Trial and Trial Flashcards

1
Q

What are the types of pleadings allowed under the Rules of Federal Procedure

A

(1) complaints
(2) answers to complaints
(3) answers to counter-claims
(4) answers to cross-claims
(5) third-party claims
(6) answers to third-party claims
(7) replies to answers where ordered by the court

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2
Q

What must a complaint contain?

A

(1) a short and plain statement of the grounds for the court’s jurisdiction

(2) a short and plain statement of the claim showing that the pleader is entitled to relief

(3) a demand for relief

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3
Q

What should a “short and plain statement” do?

A

It should contain sufficient factual matter to state a plausible claim that is more than a sheer possibility that a defendant has acted unlawfully

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4
Q

May a pleading make inconsistent claims or defenses?

A

Yes

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5
Q

Is it proper for a pleading to include a statement of a claim or defense like below:

Plaintiff alleges that Defendant negligently broke her arm. Plaintiff also alleges that Defendant intentionally broke her arm.

A

Yes, a pleading may state one or more statements of a claim or defense alternatively or hypothetically.

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6
Q

Are technical defects in a pleading a problem?

A

Not if it does not prejudice a substantial right of the parties

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7
Q

Is evidentiary material required in the complaint?

A

No, only the factual matter which is sufficient to set up a plausible claim for relief

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8
Q

What matters must be plead with particularity?

A

(1) if it is required to show that the court has jurisdiction, the capacity or authority to sue

(2) fraud, mistake, or condition of the mind

(3) conditions precedent when denying a condition occurred

(4) time and place when testing the sufficiency of a pleading

(5) special damages

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9
Q

What is required of an answer to a complaint?

A

The responding party must admit or deny the allegations

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10
Q

Can a responding party to a complaint admit part of an allegation but not all of it?

A

Yes

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11
Q

What happens if the responding party fails to answer an allegation

A

It is deemed to admitted

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12
Q

What is an affirmative defense?

A

it is a defense that relies on factual issues not present in the complaint

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13
Q

When asserting an affirmative defense, what is required?

A

the additional facts must be presented

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14
Q

What are the affirmative defenses that must be in an answer? (name at least 8)

A

(1) accord and satisfaction
(2) arbitration and award
(3) assumption of risk
(4) contributory negligence
(5) duress
(6) estoppel
(7) failure of consideration
(8) fraud
(9) illegality
(10) injury by fellow servant
(11) laches
(12) licenses
(13) payment
(14) release
(15) res judicata
(16) statute of frauds
(17) waiver

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15
Q

When might a challenge to jurisdiction or other procedural matters be brought?

A

In the answer or in a pre-answer motion

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16
Q

When should a pre-answer motion be brought?

A

Before an answer.
Dude…if you didn’t get this I don’t know what to tell you.

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17
Q

What matters might be brought in a pre-answer motion?

A

(1) subject-matter jurisdiction
(2) personal jurisdiction
(3) improper venue
(4) insufficient process
(5) insufficient service of process
(6) failure to state a claim upon which relief can be granted
(7) failure to join a party under Rule 19

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18
Q

Can pre-answer motion matters be brought together?

A

Yes

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19
Q

What happens if the pre-answer motion fails to bring a defense or challenge?

A

Unless it is subject-matter jurisdiction, failure to state a claim, or failure to join a party, cannot be brought again and the challenge is considered waived.

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20
Q

When might a motion to dismiss for failure to state a claim, failure to join, or failure to state a legal defense be made?

A

(1) in any pleading made or ordered under rule 7(a)
(2) by a motion under rule 12(c)
(3) at trial

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21
Q

How much time does someone have to answer a complaint?

A

(1) 21 days after service of process
(2) 60 days after waiver of service to a US party
(3) 90 days after waiver of service to a foreign party

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22
Q

If a pre-answer motion is denied, how long does an answering party have to respond to the complaint?

A

14 days

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23
Q

When may a party amend a pleading as a matter of course

A

(1) within 21 days of service of the OG complaint
(2) or within 21 days after service of an answer, a motion to dismiss, a motion for a more definite statement, or a motion to strike

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24
Q

What factors are considered when a court permits a party to amend?

A

(1) the reason for delay in raising the matter
(2) prejudice to the opposing party due to the delay

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25
Q

What does the Doctrine of Relation Back mean for amended claims?

A

a court will treat an amendment as though it had been filed with the original pleading as long as it arises out of the same conduct or transaction, or occurrence as the original claim

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26
Q

What does the Doctrine of Relation Back mean for added parties?

A

the court will treat it as filed at the same time as long as:

(1) amendment asserts a claim or defense that arises from the same conduct, transaction, or occurrence

(2) the party to be added by the amendment received notice of the original action within 90 days of service of the claim

(3) the party that was added should have known or knew that the original action would have been asserted against it

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27
Q

Per Rule 11, what must be on every pleading, written motions, and other paper filed with the court?

A

(1) the signature of the attorney or unrepresented person
(2) signer’s address, e-mail address, and telephone number

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28
Q

What happens if a document does not comply with Rule 11?

A

the court must strike the unsigned paper unless the omission is promptly corrected

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29
Q

Rule 11 does not apply to what documents?

A

Discovery matters

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30
Q

When submitting a document under Rule 11, what is the individual certifying?

A

(1) the document is not being presented for any improper purpose
(2) the claims, defenses, and other legal contentions are warranted by existing law, or nonfrivolous arguments for extending, modifying, or creating new law
(3) factual contentions have evidentiary support or will likely have evidentiary support
(4) the denials of factual contentions are either warranted on the evidence or are reasonably based on belief or lack of information

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31
Q

When might sanctions be brought under Rule 11?

A

A motion may only be made after providing notice to the opposing party and providing 21 days to correct or withdrawal

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32
Q

What is the purpose of provisional relief?

A

maintain the status quo and prevent irreparable damage

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33
Q

What must a party establish for provisional relief?

A

(1) a substantial likelihood of success on the merits
(2) irreparable harm unless the relief is sought
(3) harm to the plaintiff is higher if relief is not granted than the harm to the defendant if granted
(4) will not be adverse to public interest

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34
Q

What must a court do if granting provisional relief?

A

require the moving party to give security to cover the costs and damages to any party who is wrongfully enjoined or restrained

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35
Q

When might a TRO be granted without notice to the adverse party?

A

(1) specific facts clearly show immediate and irreparable injury, loss, or damage will result before the adverse party can be heard
(2) movant’s attorney certifies that she made efforts to provide notice and the reasons why notice should not be required.

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36
Q

May a preliminary injunction be issued without notice?

A

no

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37
Q

What must be included in a granting of provisional relief?

A

(1) state the reasons for issuance
(2) state specific terms for the order
(3) state the act(s) prohibited or required

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38
Q

What must an order for provisional relief not do

A

be a reference to the complaint or other document

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39
Q

Is a party able to join multiple claims against a single defendant?

A

Yes, even if they are unrelated

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40
Q

What may a court do if the joinder of claims may result in prejudice or impair judicial economy?

A

Order a separate trial

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41
Q

What is a compulsory counter-claim

A

a claim arising from the same transaction or occurrence as the original claim

42
Q

What is a permissive counter-claim

A

a claim arising out of a separate transaction or occurrence

43
Q

If the claims include permissive counter-claims, what must the claimant show?

A

That there is an independent ground for federal jurisdiction

44
Q

What is required for cross-claims?

A

They must either:
(a) arise from the same transaction or occurrence
(b) have an independent basis for jurisdiction

45
Q

What are impleader claims?

A

Where the defendant moves against a third-party which may be jointly or totally liable

46
Q

What is a contribution claim?

A

A claim that shifts part of a party’s liability

47
Q

What is an indemnity claim?

A

A claim that shifts all of the party’s liability

48
Q

When must a defendant bring a third-party claim?

A

Within 14 days of filing their answer

49
Q

What is required for multiple permissive parties to be joined

A

(1) joined parties claim relief or face liability out of the same transaction or occurrence
(2) question of law or fact is common to the joined parties

50
Q

When is joinder compulsory?

A

(1) a party’s absence would prevent complete relief
(2) adjudication without the party would impair or impede them from protecting their interests or leave an existing party subject to double or multiple obligations

51
Q

What factors does a court weigh if compulsory joinder defeats jurisdiction?

A

(1) the extent to which absence might prejudice that person or existing parties
(2) extent to which prejudice could be lessened or avoided
(3) judgment rendered in absence would be adequate
(4) relief granted would be adequate remedy

52
Q

What is Rule 22 interpleader?

A

Where a party herself initiates interpleader due to the claim(s) impact on their interest

53
Q

What is statutory interpleader

A

The owner of property which may be claimed may interplead all possible claimants

54
Q

What is intervention?

A

Where a non-party asserts a right or interest in the ongoing action

55
Q

When is intervention timely?

A

(1) length of time the non-party knew or should have known of the action
(2) extent of prejudice that the existing parties may suffer due to delay
(3) likelihood and gravity of prejudice to non-party if denied

56
Q

When is intervention permissive?

A

(1) the non-party’s interests are represented adequately
(2) disposing of the action would not impair their ability to protect their interests
(3) they are not asserting a protectable interest relating to the property or transaction
(4) a federal statute does not confer an absolute right to intervention

57
Q

Where intervention is permissive, what is the court’s authority?

A

discretionary

58
Q

What are the requirements for class actions?

A

(1) numerosity - separate joinder for each party is impracticable
(2) commonality - same question of law or facts (members have the same injury)
(3) typicality - claims or defenses are typical for each member of the class
(4) adequacy of representation - representative party can fairly protect and represent each member’s interest

59
Q

What else must be shown for a class action?

A

One of the below:
(1) separate actions would carry the risk of inconsistent or varying judgments
(2) opposing party has acted or refused to act on grounds generally applicable to the class
(3) common questions predominate over individual questions

60
Q

When is notice to a class necessary?

A

Where the common questions of law or fact exist

61
Q

When is notice not necessary?

A

When the relief is injunctive or declaratory

62
Q

When should the parties have a discover conference?

A

Within 21 days of a scheduling order

63
Q

When may a court impose sanctions for discovery pretrial conference?

A

(1) party fails to appear
(2) substantially unprepared to participate
(3) fails to obey an order

64
Q

What are mandatory disclosures during discovery?

A

(1) the name and known phone numbers and addresses of individuals likely to have discoverable information
(2) a copy or description of all documents
(3) computation of damages
(4) insurance agreements

65
Q

When must mandatory disclosures be made?

A

within 14 days of the discovery conference

66
Q

What else must a party disclose?

A

(1) identity of any witness that may testify at trial
(2) any expert witnesses final written report
(3) non-expert witness’s subject matter of testimony and summary of the facts an opinions

67
Q

What must a party disclose within 30 days of trial?

A

(1) names and contact information for each possible witness
(2) list of witnesses presented through deposition
(3) doscuments or physical evidence the party expects to present

68
Q

What happens if a party fails to disclose mandatory information?

A

The evidence may be excluded

69
Q

What is a party’s right to discovery?

A

(1) any nonprivileged matter
(2) any matter relevant to any party’s claim or defense
(3) proportional to the needs of the case

70
Q

Other than attorney client privilege, what else may be priviledged matters

A

(1) doctor-patient
(2) spousal
(3) psychotherapist-patient
(4) priest-penitent

71
Q

When may attorney work-product be discoverable?

A

(1) otherwise discoverable under Rule 26(b)(1)
(2) party shows substantial need and undue hardship

72
Q

What objections are available during deposition?

A

Any objection that may be made if the witness were testifying in trial

73
Q

May objections to a deposition be waived?

A

Yes, if they are untimely

74
Q

What is the time limitation on answering interrogatories?

A

30 days after service

75
Q

How may questions are permitted in interrogatories?

A

25

76
Q

When may a request for documents be made?

A

Within 21 days after the summons or complaint are served

77
Q

What must a party do with relation to ESI?

A

(1) identify the important ESI
(2) legal hold to ensure no data is destroyed
(3) transferred from company to legal counsel to determine relevance
(4) prepared for review
(5) turned over to opposing party per agreed specifications

78
Q

When a court determines that the destruction or loss of evidence was intentional, what may the court do?

A

(1) assume the evidence was unfavorable to the party
(2) instruct the jury to presume the evidence was unfavorable
(3) dismiss the action or enter a default judgment

79
Q

What happens if a party fails to comply with an order to compel

A

Court may issues ordering:
(1) facts sought favor requesting party
(2) prohibiting disobedient party from supporting or opposing claims or defense involved
(3) striking pleadings in whole or part
(4) staying further proceedings until obedience
(4) rendering default judgment
(5) treating the disobedience as contempt of court

80
Q

When might sanctions be given outside of disobeying court orders?

A

(1) failure to appear at deposition
(2) failure to answer or object to an interrogatory

81
Q

What standard are a court’s determination of voluntary dismissals under?

A

discretion

82
Q

What involuntary dismissals are with prejudice?

A

(1) failure to state a claim
(2) failure to prosecute

83
Q

When might a dimissal for failure to state a claim be without prejudice?

A

The defect can and should be rectified

84
Q

Who may not be subject to default judgements?

A

a minor or incompetent person

85
Q

When is a right to a jury trial absolute?

A

(1) by statute
(2) when relief is monetary

86
Q

How many preemptory challenges may a party have?

A

Three

87
Q

What are reasons a juror may not be excused?

A

race, ethnicity, or gender

88
Q

What must the party wishing a juror to be excused prove?

A

That the excusal is not on a discriminatory ground

89
Q

Up to when can a party object to jury instructions?

A

Before deliberations

90
Q

What are motions to dismiss?

A

(1) lack of subject-matter jurisdiction
(2) lack of personal jurisdiction
(3) improper venue
(4) insufficient service
(5) insufficient process
(6) failure to join a party
(7) failure to state a claim

91
Q

Who may make a motion to strike?

A

(1) either party within 21 days after service
(2) the court on its own

92
Q

When must a motion for a more definite statement be made?

A

Prior to answering a complaint

93
Q

When is summary judgment granted?

A

When the moving party shows there is no genuine dispute to any material fact and the movant is entitled to judgment as a matter of law

94
Q

How long does a party have to move for summary judgment?

A

30 days after close of discovery

95
Q

How is evidence viewed in a motion for summary judgment?

A

In the light most favorable to the non-moving party

96
Q

When may a party move for a judgment as a matter of law?

A

After the end of the other party’s case

97
Q

When is it proper for a party to move for a renewed motion for judgment as a matter of law

A

Within 28 days after the entry of judgment and the party timely moved for a judgment as a matter of law

98
Q

Define additur and remittitur

A

remittitur - decreasing the award
additur - increasing the award

99
Q

Is additur permitted in a federal court

A

no

100
Q

Why might a court provide relief from a judgment or order?

A

(1) mistake
(2) new evidence that could not have been discovered before trial
(3) fraud, misrepresentation, or misconduct by the opposing party
(4) the judgment is void
(5) the judgment has been satisfied
(6) any other reason which justifies relief

Capstone (4 decks)

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