MBECivPro Flashcards
(25 cards)
Waiver of Service of Process
If D agrees, gets 60 days to file answer, rather than 21
FRCP: What Must Be Included in Complaint
- Short + plain sttmt of SMJ
- Legal claim stating plausible entitlement to relief
- Relief sought
12(b)(6) Failure to State Claim
- Ct treats all well-pleaded facts as true, resolves all doubts + inferences in P’s favor, + views in light MF to P
- P must state right to relief above “speculative level” on complaint alone (exs, but not affs)
FRCP Permissive Joinder (R. 20)
(i) right to relief arising out of same T + O; + (ii) at least 1 Q law or fact common to all Ps
in diversity case, P can join so long as dn destroy diversity (can claim less than $75K)
Compulsory Joinder: Necessary Parties (R. 19(a))
- Complete relief cn be granted in absence;
- Disposition in absence may impair own interest; or
- Absence would leave existing parties subject open to multiple obligations
- Not tortfeasors facing jt + several liability
Compulsory Joinder: Indispensable Parties: If necessary party cn be joined b/c of j or venue, ct must decide whether to dismiss (rare), considering:
- extent of prejudice to person or existing parties if judgment rendered in absence;
- ability to avoid prejudice by protective measures in judgment, shaping relief, etc;
- would judgment rendered w/out party be adequate;
- will P have an adequate remedy if dismissed
Federal Statutory Interpleader
- Diversity: need only $500 + any 2 diverse claimants; nationwide PJ; venue where any claimant resides; ct has power to enjoin other actions
- Stakeholder must deposit prop w/ ct or post bond
Class Action: 3 Types under R. 23(b)
- Risk of adverse effects from separate actions
- Injunctive relief is applicable to the class
- Predominance of common Qs law/fact (also requires superior method)
Class Action Fairness Act of 2005
- > 100 members
- primary Ds not gov’t entities
- action not securities or corp-governance
- AIC > $5m
- minimal diversity
BUT NO J if: primary injuries incurred in state where action filed; more than 2/3 Ps citizens of state; or significant relief sought from D who is citizen of state
Class Actions: Notice (only req’d if class certified under R. 23(b)(3))
- Best notice practicable under circs, including indiv notice to all members who can be ID’d through rsnble effort; opt out
- Cost of notice borne by Ps even if likely to succeed
3 Mando Pretrial Disclosures under R. 26(a)
- Initial: persons w/ info, copy/description docs used to support claims, computation of damages, list of insurance agmts (at or w/in 14 days initial conference)
- expert disclosures 90 days before trial, including report + compensation (rebuttal experts 30 days after)
- list of Ws + exs 30 days before trial
- objections /win 14 days unless good cause
FRCP Interrogatories
Max 25; only of parties; responses w/in 30 days
Standard of Injunction: I Prefer Free Based Drugs
Inadequate remedy at law
Property or con’l rights
Feasible to enforce
Balance of Equities
Defenses (laches, unclean hands…)
Voluntary Dismissal of Lawsuit
- W/out leave by filing notice any time before opponent serves *answer or MSJ* (not MTD)
- w/out prejudice unless P has previously dismissed action in state or fed ct based on same claim
- if already done once or post-answer/MSJ, need leave of court
Renewed Motion for Judgment as a Matter of Law
- Party CN request unless sought before case submitted to jury
- w/in 28 days after judgment
Rule 60(b) Motion for Relief from judgment
- w/in year for mistake, newly discovered evidence, fraud, misrep or misconduct by party
- w/in reasonable time on any ground that justifies relief
Citizenship for representative parties for diversity jurisdiction purposes
- Generally, citizenship of rep party controls (ie: trustee on behalf of trust)
- Exceptions = decedent’s estate (deceased person, not executor); guardianship (minor or incompetent, not guardian)
Citizenship of business entities for diversity jurisdiction purposes
- corps: state of incorp + principal place of biz (nerve center or executive offices)
- p’ships/unincorporated ass’ns (unions, trade ass’ns): every state of which members are citizens
Bases for General In Personam Jurisdiction
- in person service of process
- domicile
- consent
- corp: only where “at home,” ie: state of incorp + principal place of biz
Contents of FRCP 16(b) Scheduling Order
After consulting with parties’ attorneys + any unrepresented parties at a scheduling conference, ct must issue an order limiting time to join other parties, amend pleadings, complete discovery, and file motions
Proportionality principle governs disco under FRCP; court will consider…
amt at stake, parties’ resources + access to info, value of discovery + whether *burden outweighs benefit*
Discovery sanctions under FRCP: ct can immediately impose sanctions in three instances:
- failure to attend one’s own depo
- failure to respond to interrogatories
- failure to respond to request for docs/things
- otherwise, motion to compel first
FRCP: Discovery of electronically stored info
- should be preserved
- if lost thru unreasonable conduct of party, ct may order measures to cure prejudice to other party
- if destroyed w/ intent to prejudice other party, ct may instruct jury to presume info was unfavorable or dismiss suit
FRCP Pre-trial Conference
- must be attended by attys who will conduct trial; 90 days after service complaint
- must file pretrial statement detailing claims, defenses, itemization of damages, list of all Ws and exhs, etc
- failure to comply leads to atty’s fees and costs
