Civil Procedure Flashcards
(17 cards)
What defenses must be raised in a pre-answer motion or else they are waived?
PJ, venue, insufficient process, insufficient service of process
Can an issue be tried even if it is not raised in the pleadings ?
“When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.”
Other party must object if they do not want the unpleaded issue to be tried.
Issue Preclusion: Who can assert it?
A judgment binds the plaintiff or defendant (or their privies) in subsequent actions on different causes of action between them (or their privies) as to issues actually litigated and essential to the judgment in the first action.
What is a motion for judgment as a matter of law?
if the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may resolve the issue against the party and grant a motion for judgment as a matter of law against the party
When do you file notice of removal / notice of remand
Removal: filed within 30 days of service of complaint.
Remand: filed within 30 days of filing of notice of removal (D must show removal was proper).
What is the standard for venue transfer?
Convenience of parties & interest of justice.
What is the timing for service of complaint?
90 days from filing complaint
What is the timing for the answer?
Served within 21 days of service of complaint
When can you Amend the pleadings as of right?
Within 21 days of service of original pleading
What is the rule for relation back for changing the defendant?
1) Same conduct, transaction, or occurrence
2) Within 90 days of filing the complaint, the party had notice
3) Knew/should have known but for mistake of party’s ID
What is needed for permissive joinder?
Claims by multiple plaintiffs or against multiple defendants must (1) arise from same transaction/occurrence and (2) raise at least one common question of law/fact
What is a necessary party?
Impairs interest of absentee (Case may still proceed if cannot join b/c of jurisdiction)
What is an indispensable party?
Prejudices the absentee (case must be dismissed if cannot join due to jurisdiction)
What is the rule for a plaintiff joining claims?
P can join as many claims (even unrelated) as long as there is SMJ.
What are the types of intervention?
Intervention as of Right:
1) Interest in property/transaction
2) Interest is impaired
3) NO Court permission required
Permissive Intervention:
1) Claim/defense has common question of
law/fact
2) Court permission IS required
What are the types of interpleader?
Statutory Interpleader:
1) Nationwide Service
2) ANY 2 claimants can be diverse
3) $500 or more at stake
4) Deposit money/property in Court/bond
Rule Interpleader:
1) NO Nationwide Service
2) Complete Diversity between claimant & ALL
opponents
3) $75K+ requirement
4) NOT required to deposit money
What are the 3 types of pre-trial conferences?
Conference of Parties:
1) Court MUST have conference
2) Parties MUST submit Discovery plan
Scheduling Conference:
1) Court MUST have conference to limit time
2) Must issue SCHEDULING ORDER within 90
days of filing complaint
3) CANNOT be modified unless “Good Cause”
Final Pretrial Conference:
1) Court MAY hold conference
2) IF there is a conference, Court MUST issue
Pretrial Order
3) ONLY modified to prevent
“Manifest Injustice”
