claims and adding parties

Question 1

When does the action commence?

Answer 1

when the complaint is filed

Question 2

content of complaint

Answer 2

1) statement of grounds of SMJ;

2) A short and plain statement of the claim showing that the plaintiff is entitled to relief and

3) demand for relief sought (for example, damages, injunction, declaratory judgment).

*The plaintiff need not allege grounds for PJ or venue.

Question 3

Detail required in stating the claim

Answer 3

sufficient facts to support a plausible claim.

Fraud, mistake, and special damages must be pleaded with particularity or specificity.

Question 4

How D must respond to complaint

Answer 4

by motion or by answer (rule 12)

Question 5

When must D respond to complaint

Answer 5

21 days after being served.

If D waived service - 60 days from when the plaintiff mailed the waiver form to respond.

Question 6

Motions Addressing Issues of Form

Answer 6

12(e) motion for more definite statement - must make this motion before answering;

12(f) motion to strike - asks the court to remove redundant or immaterial things from a pleading (that is, a complaint, an answer, etc.); and

Question 7

Waivable rule 12(b) defenses

Answer 7

waived if not put in the first Rule 12 response (limited exception)

• lack of personal jurisdiction;
• Improper venue;
• Improper process (a problem with the papers); and
• Improper service of process.

Question 8

12(b) defenses that can be raised later

Answer 8

can be raised as late as at trial:
* failure to state a claim
* failure to join an indispensable party

can be raised at ANY time:
* A lack of subject matter jurisdiction

Question 9

If rule 12 motion to dismiss is denied

Answer 9

serve answer no later than 14 days after notice of the denial

Question 10

What is included in the answer

Answer 10

1) Respond to the Allegations in the Complaint
- Admit
- Deny
- Insufficient knowledge

2) Raise affirmative defenses

Question 11

When does P have right to amend

Answer 11

The plaintiff has a right to amend her complaint once as of course no later than 21 days after the defendant serves her first Rule 12 response.

Question 12

When does D have right to amend

Answer 12

The defendant has a right to amend his answer once as of course no later than 21 days of serving it.

IF first response was an answer, D can amend to include the waivable defenses and affirmative defense

Question 13

when can amendment be made after time to amend expires?

Answer 13

party must seek leave of court (or get the written consent of the opposing party). The court will grant leave to amend if “justice so requires.”

• consider length of delay, prejudice to the other party, and futility of amendment.

Question 14

Variance general rule

Answer 14

when the evidence at trial does not match what was pleaded.

If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.

Question 15

amendment after statute of limitations has run to join a claim not originally asserted

Answer 15

amended pleading “relates back” if the pleading concerns the same conduct, transaction, or occurrence as the original pleading.

Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.

Question 16

amendment after statute of limitations has run to change a D

Answer 16

The amendment will relate back if:

1) concerns the same conduct, transaction, or occurrence as the original

2) D had such knowledge within period for service (90 days after filing complaint) of the case such that she will be able to avoid prejudice AND

3) D knew or should have known within period for service (90 days after filing complaint) that, but for a mistake, she would have been named originally

Question 17

Supplemental pleadings general rule

Answer 17

set forth things that happened AFTER the pleadings were filed. There is no right to file a supplemental pleading. You must make a motion; whether that motion is granted is within the discretion of the trial court

Question 18

What does rule 11 signature requirement apply to?

Answer 18

all papers EXCEPT discovery

Question 19

When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:

Answer 19

• The paper is not for an improper purpose;
• The legal contentions are warranted by law or a nonfrivolous argument for a law change; and
• The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.

Question 20

The purpose of sanctions is

Answer 20

Deter a repeat of the conduct, NOT to punish

Question 21

Whom can sanctions be imposed

Answer 21

party, lawyer, lawyer’s firm

Question 22

Safe harbor provision

Answer 22

Cannot immediately file a motion for sanctions. Must first serve on violating party. Violating party has 21 days to fix the problem. If they do not, motion can be filed

Question 23

joinder basic rule

Answer 23

how many parties and claims can be joined in one case

Question 24

claim joinder by P

Answer 24

P may join ANY additional claims against adverse party, even if unrelated to original claim (BUT must be SMJ over each claim)

Question 25

joinder of multiple plaintiffs and defendants

Answer 25

can join multiple Ps or Ds if: - arise from same transaction or occurence AND - raise at least one common question of law or fact *test for joining Ps and Ds is the same!

Question 26

test for joining necessary and indispensable parties

Answer 26

court forces non-party (absentee) to join the case 1. is absentee necessary? 2. can absentee be joined? 3. if absentee CANNOT be joined, can the case proceed anyway?

Question 27

when is an absentee necessary or required

Answer 27

- cannot accord complete relief among the existing parties - absentee's interest may be harmed if she is not joined - absentee claims an interest that subjects a party (usually D) to a risk of multiple liability *joint tortfeasors are NEVER necessary

Question 28

when can absentee be joined

Answer 28

1) PJ over absentee 2) SMJ over claim by or against absentee

Question 29

PJ loophole over absentee

Answer 29

if absentee served within 100 mi of the court, PJ over absentee

Question 30

if absentee cannot be joined

Answer 30

court must decide to proceed without absentee or dismiss. Consider: - alternative forum available? - actual liklihood of harm to absentee? - can the court shape relief to avoid that harm to absentee?

Question 31

indispensable absentee

Answer 31

absentee that cannot be joined and the court decides to DISMISS

Question 32

Where is a counterclaim made

Answer 32

Ds answer

Question 33

compulsory counterclaims

Answer 33

arises from the same T/O as P's claim. Use it or lose it

Question 34

Permissive counterclaims

Answer 34

does not arise from the same T/O. Party can sue on the claim in a separate case

Question 35

crossclaim

Answer 35

claim against a co-party. MUST arise from the same T/O, but never is compulsory.

Question 36

impleader

Answer 36

defending party (third party P) bringing in a new party (third party D). Used to shift to the 3PD the liability that the D will owe to the P.

Question 37

Indemnity

Answer 37

shifts the liablity fully from D to 3PD

Question 38

Contribution

Answer 38

shifts the liability pro-rata from D o 3PD (3PD must cover a pro-rata portion)

Question 39

Is there such thing as compulsory impleader?

Answer 39

No. Always permissive

Question 40

Process for impleading 3PD

Answer 40

D must 1) file a third party complaint naming the 3PD and 2) formally serve the complaint on the 3PD. Right to implead within 14 days of serving the answer. After that, court permission is needed

Question 41

PJ loophole for impleader

Answer 41

if 3PD served within 100 mi of the court, PJ over absentee

Question 42

intervention

Answer 42

nonparty absentee brings themselves into case either as a P to assert a claim or as D to defend a claim.

Question 43

Intervention - if the intervening party comes in on the "wrong" side

Answer 43

court may realign the intervening party

Question 44

Intervention of right

Answer 44

right to intervene if: - interest may be harmed if not joined AND - interest is not adequately represented by the current parties

Question 45

Permissive intervention

Answer 45

Absentee's claim/defense and the pending case have at least ONE common Q of law/fact. Discretion of the court to allow, but usually is allowed unless it would cause delay or prejudice to someone

Question 46

interpleader - general

Answer 46

permits a person/stakeholder holding property to force all the claimants over the property into one case to litigate their claims

Question 47

rule interpleader

Answer 47

requires: 1) complete diversity between stakeholder and all claimants AND 2) property worth more than 75k *normal venue and service rules apply

Question 48

statutory interpleader

Answer 48

requires: 1) diversity between ANY TWO claimants (stakeholder citizenship irrelevant UNLESS stakeholder is making a claim over the property) AND 2) property worth $500 *service may be nationwide and venue is proper where ANY claimant resides

Question 49

class action initial requirements

Answer 49

1) numerosity - too many class members for practicable joinder; AND 2) commonality - some issue in common so resolution will generate answers for everybody; AND 3) typicality - rep's claims are typical of the claims of the class; AND 4) representative adequate - will fairly and adequately represent the class

Question 50

Types of class actions

Answer 50

prejudice, injunctive/declaratory, common Q/damages

Question 51

Prejudice class action

Answer 51

class treatment necessary to prevent harm or prejudice (rare)

Question 52

Injunction/Declaratory class action

Answer 52

D treated class members alike. Ps cannot seek damages.

Question 53

Common Q/damages class action

Answer 53

1) common Qs predominate over individual Qs AND 2) class action is the superior method for handling dispute

Question 54

Class action certification

Answer 54

class is not a class action until the court grants motion to certify it as a class action. Court also must: 1) define the class and class claims, issues, or defenses AND 2) appoint class counsel, who must fairly and adequately represent the interests of the class

Question 55

Notice to class

Answer 55

No notice requirement for prejudice and injunctive/declaratory class action. For common Q class action: court must notify class members (paid for by rep) that they are in a class and inform them: - can opt out - will be bound by the judgement if they do not opt out - can enter a separate appearance through counsel

Question 56

right to opt out of a class action

Answer 56

no right for prejudice and injunctive/declaratory class action. only a right to opt out for common Q

Question 57

Settlement of class action

Answer 57

Parties can settle/dismiss only with court approval. Court must give notice to class members to get their feedback. * if common Q class, court may refuse to approve the settlement unless members are given a second chance to opt out

Question 58

SMJ allowed in class actions

Answer 58

Normal FQ or Diversity: ONLY citizenship and $ claim of the class rep. is considered

Question 59

Class Action Fairness Act (CAFA)

Answer 59

grants SMJ separate from diversity jurisdiction. Allows a federal court to hear a class action if: 1) 100 members 2) any class member is of diverse citizenship from any D 3) aggregated claims of class exceed 5 million *CAFA allows any D (even an in-state D) to remove to federal court.

Question 60

Can local class actions be in federal court?

Answer 60

If most class members and the primary Ds are citizens of the same state, there are provisions to keep them in state court. These cases are dismissed (or if they were removed from state court, remanded)