Civ Pro stuff I keep forgetting 2 Flashcards
(43 cards)
CLaims that need particularity in complaint
Fraud, mistake, special damages
Motion for a more definite statement
Waived if not in first response???
Affirmative defensesd
Waived if not in answer. Include:
Self-defense
Statute of Frauds
Statute of Limitation
Contributory negligence
Claim preclusion
Fraud
Judgment on the pleadings
Motion for judgment on the pleadings. Court reviews all pleadings when deciding whether to grant the motion.
Filed after D files answer.
Permissive Joinder (CLaims by Multiple Ps or Against Multiple Ds)
Parties may join as plaintiffs or be joined as defendants whenever:
(i) Some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and
(ii) There is a common question of law or fact common to all the parties.:
Or be J&S liability!
claims by multiple plaintiffs or against multiple defendants must: (1) arise from the same transaction or occurrence (“T/O”); and (2) raise at least one common question of law or fact.
Compulsory Joinder: Is the party Necessary?
Absentee should be joined as a party when:
(i) Complete relief cannot be accorded among the other parties to the lawsuit without the absentee being made a party; or
(ii) The absentee has such an interest in the subject matter of the lawsuit that a decision in his absence will:
i. As a practical matter, impair or impede his ability to protect the interest; or
ii. Leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.
[CR, AI, Ia, ImO]
(It’s necessary for cars to have AI IMO)
Party is Neccesary if they’re a [CR,IER]:
Complete relief cannot be issued in the party’s absence; or
Failure to join would impede rights of either that party or existing parties.
Can absentee be hjoined?
Need PJ and SMJ and Venue. If original basis for SMJ is diversity, NO Supplemental JS allowed over joinder of a party who would destroy diversity.
If Necessary Party Cannot be joined (indespesable)
Can the case proceed “In equity and good conscience without absentee”. The court uses a balancing test to determine whether the suit should be dismissed. Court asks: [prejudice to absentee and parties, adequacy of judgment, ability to shape relief to avoid prejudice, availability of alternatives]. [Pee JAR]
- Would the judgment rendered in the party’s absence prejudice that person or the existing parties?
- Could prejudice be lessened or avoided by:
- Protective provisions in the judgment?;
- Shaping the relief?; or
- Other measures? - Would a judgment rendered in the person’s absence be adequate?
- Would P have an adequate remedy in another forum if the action were dismissed?
deadlineto file an impleader claim?
deadlineto file an impleader claim?
Within 14 days of serving an answer; or
With permission of court
Time to respond to AMENDED pleading
14 days after service of the amended pleading or the time remaining for response to the original pleading, whichever is LATER. (unless the court orders otherwise).
Interpleader
Either rule or statutory:
Rule 22 interpleader requires (1) complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue, or (2) a federal question claim. Normal service and venue.
Statutory interpleader requires only diversity between any two contending claimants and $500 be in issue.
Service may be na- tionwide and venue is proper where any claimant resides.
Intervention
Absentee seeks to join as P or D. Can be matter of right or permissive.
Matter of right: Court must grant intervention when:
- Right is granted by federal statute; or
- Party has an interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties.
Permissive: absentee’s claim or defense and the pending case have at least one common question of law or fact, intervention would be permissive and discretionary with court.
Claim Joinder:
Claims by multiple plaintiffs or against multiple defendants* MUST:
(1) arise from the same transaction or occurrence (“T/O”); and
(2) raise at least one common question of law or fact.
Amended pleadings: When can it relate back?
An amendment changing party if
• The Amendment arises from same T/O as the original pleading.
• The new D received timely notice of the action. (doesnt have to be SOP)
• The new D knew or should have known that but-for the mistake, they would have been the named D.
Discovery: Initial Req’d Disclosures
14 days after 26(f) conference:
•Identites of persons with discoverable info that party may use to SUPPORT claims/defenses
• Documents/things that party may use to SUPPORT claims/defenses. Only If Within Control.
• Computation of relief, supported by docs.
• Insurance coverage
Discovery: Req’d Pretrial Disclosures
No later than 30 days before trial:
Medical Exam
• Court order required
• Parties only
• Health must actually be in controversy
• Good cause.
TRO “ex parte”: Test
Ex parte = No Notice.
Allowed only if: Affidavit…
•Applicant will suffer immediate and irreparable harm, injury will occur before a hearing for a prelim injunction
• D must make efforts to Notice, or give reasons notice should not be required.
Prelim Injunction: Standard
• Irreperable harm,
• Likely to win on the merits
• Balance of hardship favors her
•Public interest
Default judgement
After entry of default by CLERK, P must seek default judgement:
CLERK can enter default judgment if:
• D has made no response
•Sum certain
•P gives affidavit of sum owed
• D is not minor or incompetent
OTHERWISE, P must apply to COURT for DJ.
Motion to set aside Default
(1) good cause (excusable neglect)
(2) viable defense
Motion to dismiss for failure to state a claim
Do the plaintiff’s allegations of fact, if true, state a plausible claim?
Motion for summary judgement: Timing
No later than 30 days after close of discovery.
26(f) conference: Timing
Must be 21 days before ct’s scheduling order.
Parties must present discovery plan no later than 14 days after conference.
