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MBE Civil Procedure > Pleadings & Parties > Flashcards

Flashcards in Pleadings & Parties Deck (67)
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1
Q

What is a complaint and what must it contain?

A

Pleading filed to initiate lawsuit.

Must contain:

  1. Grounds for SMJ;
  2. Statement of claim; and
  3. Demand for relief (damages, equitable relief, etc)
2
Q

What must the statement of claim contain?

A

“Short and plain statement” showing that P has a plausible claim for relief.

3
Q

What sort of claims need to be plead with particularity?

A

Those involving fraud, mistake, or special damages.

See FRCP 9. for specific pleading requirements.

4
Q

D has ____ days after service of process to file an answer.

A

21.

⚠️ If D waived service, answer is due within 60 days after request for waiver was sent, or within 90 days after it was sent to D outside any judicial district of the United States.

If D is the United States or a US employee, answer is due within 60 days.

FRCP 12(a)(1)(A)(i)

5
Q

What must an answer contain?

A
  1. Admittance or denial of all complaint allegations (failure to deny constitutes admission)
  2. Affirmative defenses (if D fails to raise in answer, they will be waived). Examples include:
    1. Self-defense
    2. Statute of Frauds
    3. Statute of Limitation
    4. Contributory negligence
    5. Claim preclusion
    6. Fraud
6
Q

What is the effect if a party pleads lack of information because they don’t know whether or not an allegation is true?

A

Will be treated as a denial.

7
Q

What are the Rule 12(b) grounds for dismissal?

A
  1. Lack of SMJ;
  2. Lack of PJ;
  3. Improper venue;
  4. Insufficient process;
  5. Insufficient service of process;
  6. Failure to state a claim upon which relief can be granted; and
  7. Failure to join a party under Rule 19
8
Q

What is the deadline for filing 12(b) motions if responsive pleading is allowed?

A

Before the answer.

9
Q

What is a 12(b)(6) motion and what is the deadline for filing?

A

Motion to dismiss for failure to state a claim upon which relief can be granted. Court reviews P’s complaint only - no other evidence - to determine whether to grant the motion.

If a responsive pleading is required - the 12(b)(6) motion must be filed before the answer.

If no responsive pleading is required, the 12(b)(6) motion can be filed anytime before trial or at trial.

10
Q

What is a 12(c) motion and the deadline for filing?

A

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

Filed after D files answer.

11
Q

Which 12(b) defenses are waived if not included in the 12(b) motion?

A
  • Lack of personal jurisdiction
  • Improper venue
  • Insufficient process
  • Insufficient service of process
  • Motion for a more definite statement
12
Q

Which 12(b) defense is never waived?

A

Lack of SMJ.

13
Q

Distinguish between an ordinary defense and an affirmative defense

A

Ordinary defense: Defense on the basis of the complaint.

Affirmative defense: Introduces new facts to defeat or mitigate D’s liability.

14
Q

When can a party amend its pleading as a matter of course?

A
  1. Parties may amend pleadings once as a matter of course within 21 days of service of process.
  2. If responsive pleading required, can amend within 21 days after either responsive pleading or pre-answer motion (whichever came first).
15
Q

What must a party do if they want to amend twice or after the deadlines have expired?

A

Seek either the other party’s permission or the court’s permission (by motion).

16
Q

When do courts grant permission to amend?

A

Permission is “freely given when justice so requires.” Only denied if other party can show unfair prejudice would result.

⭐️ Note: Leave to amend is liberally granted.

FRCP 15(a)(2)

17
Q

Can you amend during or after trial?

A

Yes, as long as the court grants permission.

18
Q

A party has ___ days to respond to an amended pleading

A

14 days after service of the amended pleading or the time remaining for response to the original pleading (unless the court orders otherwise).

19
Q

What does it mean if an amendment “relates back”?

A

It means that the amendment relates back to the date of the original pleading (often used when statute of limitations has expired)

20
Q

When do amendments adding new claims “relate back”?

A

Only when the claim arises out of the same “conduct, transaction, or occurence” as the original pleading.

21
Q

When do amendments adding parties “relate back”?

A

If:

  1. Amendment arises out of the same conduct, transaction, or occurence as the original pleading; and
  2. Within 90 days after the complaint is filed, the new D:
    1. Received notice & will not be prejudiced; and
    2. Knew or should have known that the action would have been brought but for a mistake concerning the proper party’s identity (i.e. the suit was foreseeable)
22
Q

Define

supplemental pleadings

A

Pleadings that describe a transaction, occurrence, or event that happened after the date of the original pleading. Court may permit on motion and upon reasonable notice.

23
Q

What is the Rule 11 signing requirement?

A

Requires that all pleadings and motions be signed by at least one attorney per party (or party himself if pro se) certifying that, to the best of the attorney’s knowledge after reasonable inquiry:

  • Pleading is not to harass or for any improper purpose
  • Legal arguments are nonfrivolous and supported by existing law; and
  • Factual assertions & denials have or will have evidentiary support
24
Q

What are types of Rule 11 sanctions?

A
  • Monetary/penalty: court fees associated with the cost of seeking sanctions incurred by the other party
  • Non-monetary: reprimand or strike the pleadings
25
Q

What is the Rule 11 “safe harbor” provision?

A

If the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service, then Rule 11 sanctions should not be filed with the court.

26
Q

What steps must a party take to move for Rule 11 sanctions?

A
  1. Serve motion for sanctions to the other party; and
  2. If error is not corrected within 21 days (within safe harbor period), file the motion with the court
27
Q

Are Rule 11 sanctions required?

A

No, whether to grant sanctions is up to the court’s discretion.

28
Q

Define

joinder of claims

A

Allows existing parties to file additional claims against each other, regardless of whether they are related. Parties can file as many additional claims as they wish.

29
Q

When is joinder of a party compulsory?

A

When the party is a necessary party, meaning

  1. Complete relief cannot be issued in the party’s absence; or
  2. Failure to join would impede the rights of either that party or existing parties
30
Q

When is joinder of additional parties permitted?

A

Multiple persons can join in one action as P’s or D’s if:

  1. D’s are being sued jointly, severally, or in the alternative;
  2. Claims arise out of the same transaction or occurrence; and
  3. There is a common question of law or fact to all parties joined
31
Q

Are joint tortfeasors considered necessary parties?

A

No, joinder is not mandatory for joint tortfeasers.

32
Q

Is proper SMJ required for joinder?

A

Yes, joinder will be precluded if adding the party would destroy diversity or otherwise negate SMJ.

33
Q

Does a court need to have personal jurisdiction over all parties joined in an action?

A

Court needs to have PJ over all D’s and all involuntary P’s. The court does not need to have PJ over voluntary P’s or those who waive PJ.

34
Q

If a joined party objects to venue, and joinder would make venue improper, what must the court do?

A

Dismiss the party.

35
Q

What occurs if a necessary party cannot be joined?

A

The court uses a balancing test to determine whether the suit should be dismissed. Court asks:

  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 if the action were dismissed?
36
Q

True or False: Compulsory joinder is typically a defense brought by D.

A

True.

37
Q

Define

bulge provision

A

Under FRCP 4(k)(b), a third party can be served with proper notice anywhere within 100 miles of the court issuing the summons.

⚠️ Note: Only applies to third party D’s & indispensible parties.

38
Q

Define

impleader

A

When D adds a third party to the case, alleging third party is responsible for some or all of the liability facing D (i.e. “It wasn’t my fault, it was his fault.”)

Impleader is common for indemnity cases & with joint tortfeasers.

FRCP 14(a)

39
Q

What is the deadlineto file an impleader claim?

A
  1. Within 14 days of serving an answer; or
  2. With permission of court
40
Q

After a party has been impleaded into a lawsuit, what claims can be filed by the:

  1. Impleaded party?
  2. Original P?
A
  1. Impleaded party: Claims of its own against other parties or impleader claims for additional parties. FRCP 14(a)(2)
  2. Original P: Claims against the impleaded D if the claim relates to the original claims. FRCP 14a)(3)
41
Q

What is interpleader and what are the two different types?

A

Allows a party with multiple, different claims to join all the claimants together.

Types:

  1. Rule interpleader (FRCP 22)
  2. Statutory interpleader (28 USC § 1335)
42
Q

When is interpleader typically used?

A

Typically used in cases where property is at issue to determine who has a proper claim or right to property held by a third-party (e.g. who has the right to property held by the executor of a will).

43
Q

What do you call the property at issue & the parties involved in an interpleader claim?

A

Stake: whatever is being fought over/claimed by the claimants (ex. estate)

Stakeholder: whoever holds the property. An interpleader allows the stakeholder to turn the property over to the court so that the stakeholder does not face liability.

Claimants: parties fighting over/claiming the stake

44
Q

What are the SMJ, PJ, and venue requirements of rule (FRCP 22) interpleader?

A
  1. SMJ: Stakeholder must be diverse from every claimant (complete diversity required) and amount in controversy >$75K
  2. PJ: must exist for all claimants
  3. Venue: same rules as other federal cases
45
Q

What are the SMJ, PJ, and venue requirements for statutory interpleader?

A
  1. SMJ: one claimant must be diverse from at least one other claimant (minimal diversity required) and amount in controversy must be $500 or more.
  2. PJ: exists as long as claimants are in the US
  3. Venue: proper in any district where any claimant resides
46
Q

What is a Rule 24 intervention?

A

Intervention that permits a non-party to join a lawsuit through its own initiative.

47
Q

When is a Rule 24 intervention granted as a matter of right?

A

On timely motion, court must grant intervention when:

  • Right is granted by federal statute; or
  • Party has an interest relating to the subject matter of the action and would not be able protect their interest without intervention
48
Q

When is permissive intervention available?

A

The court may permit intervention:

  1. Upon timely application and at the court’s discretion;
  2. When the intervenor has a claim or defense that shares a common nucleus of operative fact with the main claim
49
Q

Do permissive counterclaims have to arise from the same transaction or occurrence as the original claim?

A
50
Q

Does failure to bring a permissive counterclaim preclude D from bringing it later in a separate suit?

A

No, not precluded in a future suit.

51
Q

When is a counterclaim compulsory?

A

Any claim against the opposing party that:

  1. Arises out of the same transaction or occurrence as the original claim; and
  2. Does not require adding another party over whom the court cannot acquire jurisdiction
52
Q

What does it mean for a claim to arise from the same transaction or occurence?

A

When the claim is logically related to the original claim or the core facts substantially overlap

53
Q

Does failure to bring a compulsory counterclaim preclude D from bringing it later in a separate suit?

A

Yes, unless:

  1. D was not aware that he could bring the compulsory counterclaim (Dindo v. Whitney 1971); or
  2. D wins an affirmative defense (D can counterclaim on the same facts)
54
Q

Define

cross-claim

A

Claim filed against a co-party (i.e. someone on the same side of the “v”). Must arise out of the same transaction or occurence or relate to any property that is the subject matter of the original action.

Ex. Ian sues Max and Carly. Carly can file a cross-claim against Max as long as it arises out of the same transaction or occurence.

FRCP 13(g)

55
Q

Once D files a cross-claim against a co-D, what type of claim can the co-D then file?

A

Counterclaim → can be compulsory or permissive.

56
Q

Define

class action

A

A suit brought by one or more persons on behalf of a larger group of individuals (called a class).

57
Q

What are the 4 prerequisites to beginning a class action under FRCP 23(a)?

A

Class action is only proper if:

  1. Numerosity: the class is so numerous that joinder of all would be impractical;
  2. Commonality: there is a question of law or fact common to the class;
  3. Typicality: the claims of the representative parties are typical of those of the class, thus ensuring the representatives will have incentive to litigate in a way that will protect the class; and
  4. Representativeness: the representative parties will fairly and adequately protect the interests of the class
58
Q

Define

What are the three types of class actions under Rule 23(b)?

A
  1. When separate actions would create a risk of inconsistent judgments or judgments that would substantially impair the ability of a non-party member to protect his interests (FRCP 23(b)(1))
  2. When the class seeks injunctive or declaratory relief (not damages) (FRCP 23(b)(2))
  3. Most common: When a class seeks damages and questions of law or fact common to class members predominate over questions affecting individual members, so that a class action is superior to individual suits. (FRCP 23(b)(3))
59
Q

What are the two steps the court takes to determine whether a class action is appropriate?

A

Asks:

  1. Does the class fulfill the four requirements under Rule 23(a)? If yes:
  2. Does the class fall under the 3 categories outlined in:

If yes → the court may certify the class.

60
Q

What are the SMJ requirements for a class action under 1332(a)?

A

Federal question class actions: same requirements as other suits.

Diversity class actions:

  1. Class representatives must be diverse from all opposing parties; and
  2. Amount in controversy must be > $75K for every class member (⚠️ Note: If the amount in controversy is not met, other members may still be heard via supplemental jurisdiction if the requirements under 28 USC §1367 are met)

⚠️ Under the Class Action Fairness Act 1332(d), diversity in class actions (>100 plaintiffs) can be met if:

  1. Any P is diverse from any D; and
  2. Aggregate amount in controversy >$5 million
61
Q

What is the effect of a judgment in a class action on the class members?

A

The judgment binds all members of the class unless a class member notifies court that they do not wish to be bound.

62
Q

What notice is required for classes certified under Rule 23(b)(1) or (2)?

A

The court has discretion to determine what notice is required.

63
Q

What is required for PJ to exist for a class action under 23(b)(3)?

A
  1. Minimum contacts: only required for present class members
  2. Notice: must be given to all members
    • Members must be given ability to opt out
64
Q

Define

Class Action Fairness Act (CAFA)

A

Allows SMJ to exist when:

  1. Class has more than 100 members;
  2. Any class member is diverse from any opposing party (minimal diversity); and
  3. Aggregated claims are greater than $5 million

See more: CAFA

65
Q

For a class action, when claims arise under state law and parties are citizens of different states that have different laws on the claims, is commonality defeated?

A

Likely yes.

⚠️ Note: This scenario is frequently tested on the MBE.

66
Q

What are the rules regarding settlements for class actions?

A
  1. Court must approve all settlements;
  2. Class members should be provided notice of the possible settlement; and
  3. Settlement must be reasonable, fair, and adequate
67
Q

Define

severance

A

Allows court to split up cases into smaller suits if it would be more convenient or efficient.