Civ Pro stuff I keep forgetting 2

Question 1

CLaims that need particularity in complaint

Answer 1

Fraud, mistake, special damages

Question 2

Motion for a more definite statement

Answer 2

Waived if not in first response???

Question 3

Affirmative defensesd

Answer 3

Waived if not in answer. Include:
Self-defense
Statute of Frauds
Statute of Limitation
Contributory negligence
Claim preclusion
Fraud

Question 4

Judgment on the pleadings

Answer 4

Motion for judgment on the pleadings. Court reviews all pleadings when deciding whether to grant the motion.

Filed after D files answer.

Question 5

Permissive Joinder (CLaims by Multiple Ps or Against Multiple Ds)

Answer 5

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.

Question 6

Compulsory Joinder: Is the party Necessary?

Answer 6

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.

Question 7

Can absentee be hjoined?

Answer 7

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.

Question 8

If Necessary Party Cannot be joined (indespesable)

Answer 8

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]

1. Would the judgment rendered in the party’s absence prejudice that person or the existing parties?
2. Could prejudice be lessened or avoided by:
   - Protective provisions in the judgment?;
   - Shaping the relief?; or
   - Other measures?
3. Would a judgment rendered in the person’s absence be adequate?
4. Would P have an adequate remedy in another forum if the action were dismissed?

Question 9

deadlineto file an impleader claim?

Answer 9

deadlineto file an impleader claim?

Within 14 days of serving an answer; or
With permission of court

Question 10

Time to respond to AMENDED pleading

Answer 10

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).

Question 11

Interpleader

Answer 11

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.

Question 12

Intervention

Answer 12

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.

Question 13

Claim Joinder:

Answer 13

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.

Question 14

Amended pleadings: When can it relate back?

Answer 14

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.

Question 15

Discovery: Initial Req’d Disclosures

Answer 15

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

Question 16

Discovery: Req’d Pretrial Disclosures

Answer 16

No later than 30 days before trial:

Question 17

Medical Exam

Answer 17

• Court order required
• Parties only
• Health must actually be in controversy
• Good cause.

Question 18

TRO “ex parte”: Test

Answer 18

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.

Question 19

Prelim Injunction: Standard

Answer 19

• Irreperable harm,
• Likely to win on the merits
• Balance of hardship favors her
•Public interest

Question 20

Default judgement

Answer 20

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.

Question 21

Motion to set aside Default

Answer 21

(1) good cause (excusable neglect)
(2) viable defense

Question 22

Motion to dismiss for failure to state a claim

Answer 22

Do the plaintiff’s allegations of fact, if true, state a plausible claim?

Question 23

Motion for summary judgement: Timing

Answer 23

No later than 30 days after close of discovery.

Question 24

26(f) conference: Timing

Answer 24

Must be 21 days before ct’s scheduling order.
Parties must present discovery plan no later than 14 days after conference.

Question 25

Jury demand: timing

Answer 25

Party must demand in writing no later than 14 days after service of the last pleading addressing a jury triable issue

Question 26

Motion for JMOL: Timing

Answer 26

AFTER other side has been heard at trial on the issue. BEFORE case goes to jury.

Question 27

Motion for JMOL: Standard

Answer 27

Reasonable people could not disagree on the result.

Question 28

RJMOL: Timing

Answer 28

Within 28 days after entry of judgmenet. MUST have moved for JMOL at trial on same grounds

Question 29

RJMOL: Standard

Answer 29

The verdict returned could not have been reached by reasonable persons.

Question 30

Appeal: Right to appeal

Answer 30

Losing party has a right to appeal a Final Judgment, meaning one that determines the merits of the entire case.
For judgements that are not final, may be appealed if doctrine applies:
• preliminary or permanent injunctions (appealable as of right)
• Class Action (Certification)

• Introluctory Appeals Act
•Collateral Order doctrine
• Multiple Claims and Parties
• Extraordinary Writ (Mandamus or Prohibition)

Question 31

New Trial Motion: Timing

Answer 31

Within 28 days after entry of judgment.

Question 32

Interlocutory Appeals Act

Answer 32

• Trial judge certifies that it involves Controlling Q of Law
• Substantial Groudns for difference of opinion,
• Court of Appeals agrees to hear it.

Question 33

Appeal: Timing

Answer 33

Notice of appeal within 30 days after entry of judgment.

Question 34

Appeal: Standards of review

Answer 34

• Questions of law = de novo standard (no deference) [includes jury instructions]

• Non-jury trial, Questions of fact decided by JUDGE = clearly erronerous.

• Jury trial, Questions of fact = Affirmed unless reasonable people could not have made that finding.

• Discretionary matters = Abuse of discretion.

• ALL = harmless error.

Question 35

Issue Preclusion

Answer 35

Elements of Issue Preclusion:
- Same issue,
- Issue was Actually litigated and determined,
- Valid, Final Judgment on the Merits,
- Issue was Essential to prior judgment (means finding on the issue is the basis for the judgment),

• issue is being Used against party or party in privity to Case 1,

Used by:
- party in Case 1 (or privity), OR
- non-party (NONMUTUAL) if:
— Defensive: Non-party is D in case 2, and Opp had a full chance to litigate in case 1.
— Offensive: Non-party is P in case 2, Most states would probably say no. But some allow it if it would be fair.
Factors: Multiple inconsistent findings/judgements, D had full and fair opportuntiy and motive to litigate it, procedural devices available to D in new trial that weren’t available in first trial, new P could have easily joined first trial.

Question 36

Issue preclusion fairness factors

Answer 36

Only apply for nonmutual offensive (P2 in C2 was not a party in C1, and is using it against D1):
• D had full and fair opportunity to ligiate in case 1
• D had a strong incentive to litigate C1. (Motive to litigate)
• P2 (party asserting) could have easily joined the first case.
• No inconsistent findings on the issue.

Question 37

Elements of Claim Preclusion:

Answer 37

Elements of Claim Preclusion:
Sufficiently identical Parties (same order of parties);
Sufficiently identical causes of Action (arising out of same T/O);
valid, final judgment on Merits
- WP, JS, I, V

Same Claimant v. Same D, Valid final judgement on merits, Same Claim (T/O)

Question 38

Judgement on Merits

Answer 38

Judgement is on the merits UNLESS
•judgement was “without prejudice”, or
• based on lack of JS (PJ or SMJ),
• improper venue, or
• failure to join an indespensable party.

Question 39

Supplemental Jurisdiction

Answer 39

May add claims without SMJ if they arise from a Common Nucleus of Operative Facts. (Same conduct or transaction)

DIVERSITY cases: New paryt cannot destroy diversity of citizenship.

ALLOWED:
•Compulsory Counterclaim
•Joinder in Compulsory Counterclaim
•Cross-claim
•Impleader of 3rd party Ds

NOT ALLOWED:
•Original Plaintiff vs 3rd party
•Compulsory Joinder
•Joinder of D
• Intervention.

Court has DISCRETION to apply SJ.

Question 40

REMOVAL LIMITS

Answer 40

When a State Court (not state agency) case COULD HAVE been brought in Fed Court (meets JS requirements.

Who can remove: ONLY DEFENDANT may remove, not P.
ALL Defendants MUST agree.

Removal- Timing: Filed within 30 DAYS of service of Complaint.

LIMITATION on DIVERSITY cases ONLY:
1. Case CANNOT be removed more than 1 year after start.
2. DEFENDANT CANNOT remove if he is a citizen of forum state.

Multiple Claims:
•If one claim is removable, then the entire case can be removed.

Question 41

VENUE

Answer 41

Proper Fed District Court

1. Where ANY D resides, if ALL ds reside in the same state.
2. where substantial parts of events took place,
   ONLY if 1 & 2 do NOT apply:
3. where there is PJ over Defendant.

RESIDES - CORPORATIONS:
1. PPOB
2. Any district in state of incorporation

Question 42

Transfer of Venue

Answer 42

Transfer from PROPER VENUE:
1. Court may TRANSFER to another district,
2. For the CONVENIENCE OF PARTIES & INTEREST OF JUSTICE
• Law of Original Venue will apply.

Transfer from IMPROPER VENUE:
1. Judge MUST dismiss OR TRANSFER if in the Interest of justice.
2. Transfer TO any district where the case could have originally been brought.

Transfer by CONSENT:
•Both parties must consent.

Dismissal for Improper Venue:
• If the more convenient forum is a foreign country.

Question 43

Claim Joinder:

Answer 43

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.