Exam Prep: Pleading and JMOL

Question 1

What is a 12b6 motion to dismiss?

Answer 1

Failure to state a claim

Question 2

When can party raise a failure to state a claim motion?

Answer 2

Any time up to trial.

Question 3

for what reasons will a judge will grant a 12b6 motion?

Answer 3

If it was procedurally or legally inadequate

Question 4

What did Conley require of pleadings?

Answer 4

Notice pleading

Question 5

What does Twombly Iqbal analysis require?

Answer 5

Cut out conclusory allegations or formulaic recitations of elements and use remaining allegations to determine if claim is plausible

Question 6

How am I going to approach twombly iqbal?

Answer 6

mention there could be a problem with:

formulaic recitations of the elements

legal conclusions emerging from formulaic recitation of elements

Question 7

What are some non Iqbal problems to look out for in pleading?

Answer 7

If it just lists the elements, without the facts, then that’s a problem.

You don’t have to completely support the conclusion you come to.

Question 8

When is summary judgement appropriate

Answer 8

When there is no genuine dispute as to any material fact

Question 9

What kinds of motions can support summary judgement

Answer 9

a disproof of elements motion or an absence of proof motion

Question 10

What record does summary judgement focus on?

Answer 10

The record from discovery

Question 11

When must motion for summary judgement be filed?

Answer 11

Any time before 30 days after close of all discovery

Question 12

Who can court grant summary judgement to?

Answer 12

Anybody and can also do it sua sponte

Question 13

How can plaintiff seek summary judgement?

Answer 13

Based on proof of the elements motion

Question 14

When do you file a 12b6 motion?

Answer 14

During pleading.

Question 15

What does Iqbal say?

Answer 15

plaintiff must state a claim for relief plausible on its face

Question 16

What rules address judgement as a matter of law?

Answer 16

12b6 failure to state a claim; R56 summary judgement; R50 JMOL

Question 17

When can R50 apply?

Answer 17

Jury trials.

Question 18

What does R50 focus on?

Answer 18

Evidence presented at trial

Question 19

When can 50a be filed?

Answer 19

After a party has been fully heard on an issue (for P, after their evidence; for D, after all evidence)

Question 20

Test to grant a 50a

Answer 20

Would reasonable jury have sufficient evidentiary basis to find for the party?

Question 21

When is 50A decided?

Answer 21

Prior to submission to jury

Question 22

What should party do if 50a denied?

Answer 22

Renew motion with a 50b motion after an unfavorable verdict. Must file a 50 a to file a 50 b to avoid 7th amendment problems in taking trial away from a jury.

Question 23

Why do judges avoid granting a 50a to grant a 50b?

Answer 23

They hope jury will do the right thing and find consitently with what they would do. This saves time and money because if an appelate judge disagrees with trial court, they can reinstate the jury verdict.

Question 24

What happens when an appelate judge disagrees with rule 50b ruling at trial?

Answer 24

They can reinstate the jury verdict.

Question 25

What happens if 50a is granted?

Answer 25

The case never goes before a jury.

Question 26

What happens if 50a is reversed on appeal?

Answer 26

There may be a complete retrial to put it before a jury.

Question 27

What happens if both 50a and 50b are not granted?

Answer 27

party can request a new trial under 50b which links to 59.

Question 28

What is the standard for a R59 motion?

Answer 28

for any reason which a new trial has been granted before

Question 29

What reasons have the courts interpreted the R59 motion standard to grant a new trial for?

Answer 29

against the weight of the evidence, excessive damages (remitur), and process errors

Question 30

When must you file a 12b2-12b5 motion?

Answer 30

In the first responsive pleading.

Question 31

What happens if you don't file a 12b2-5 motion in the first pleading

Answer 31

You waive the right to those motions

Question 32

What happens to a 12b6 motion if it addresses matters outside of the pleading?

Answer 32

It becomes a R56 motion for summary judgement

Question 33

What is common law equivalent of 50a?

Answer 33

directed verdict

Question 34

What is common law equivalent of 50b?

Answer 34

JNOV

Question 35

What motions/burdens can win summary judgement?

Answer 35

Burden of proof and absence of proof (formerly burden of disproof)

Question 36

How must the party moving for summary judgement fufill their burden of proof?

Answer 36

Burden of proof = Burden of production must find and present evidence for each element of a claim

Question 37

How does a nonmoving party defeat summary judgement?

Answer 37

Prove absence of proof by demonstrating other party cannot produce evidence that proves an element of their claim

Question 38

What are rule 8 requirements of pleading?

Answer 38

Must state SMJ, claim for relief and demand for relief.

Question 39

Under rule 11, what does an attorney represent when they file a complaint?

Answer 39

No improper purpose Warranted by existing law Allegations have evidentiary support Any denials of factual allegations are warranted

Question 40

What does Rule 11 allow for if an attorney makes bad faith filing?

Answer 40

Sanctions

Question 41

What rule address default judgement?

Answer 41

Rule 55

Question 42

What is 12b1

Answer 42

SMj - filed anytime, even on appeal

Question 43

What is 12b2

Answer 43

PJ - filed at pleading

Question 44

What is 12b3

Answer 44

improper venue - filed at pleading

Question 45

What is 12 b4

Answer 45

insufficient process - filed at pleading

Question 46

what is 12b5

Answer 46

insufficient service of process - filed at pleading

Question 47

what is 12b6

Answer 47

failure to state a claim - any time until end of trial

Question 48

What is required of an answer under rule 8?

Answer 48

Response: Admissions, denials and lack enough of information to respond, and affirmative defenses

Question 49

What rule governs answer requirements?

Answer 49

8

Question 50

What rule governs amendments?

Answer 50

15

Question 51

When can an amendment be granted?

Answer 51

When justice so requires. As long as it arises STOO, timing will relate back to when the suit was originally filed.

Question 52

What amendments are barred?

Answer 52

bad faith or prejudicial to the other party

Question 53

What is rule 61?

Answer 53

Harmless error

Question 54

What does rule 61 Harmless error address?

Answer 54

Unless justice requires it, the court will not disturb a verdict, grant new trial etc if it did not affect a partys substantial rights.

Question 55

When does an amendment apply in the eyes of the courts process?

Answer 55

As long as it arises STOO, timing will relate back to when the suit was originally filed.

Question 56

What is the standard t ogrant a R59 motion for a nre trial

Answer 56

Against the great weight of evidence.

Question 57

When can a court weigh evidence in SJ, JMOL, or R59?

Answer 57

Only for R59