Topics 1-5 MCA 1 Flashcards
(92 cards)
1
Q
Hard damages
A
reasonable certain or not hard to figure out damage (money)
2
Q
soft damages
A
dont have to be specific, easily calculated, pain and suffering
3
Q
statutory damages
A
prescribed by a statute
4
Q
damage caps
A
limits awards for pain and suffering
5
Q
liquidated damages
A
contracts, state what damages are appropriate, enforced when reasonable
6
Q
compensatory damages
A
lost wages, give people what they suffered
7
Q
punitive damages
A
not always avaliable, punishment, capped by fed gov. cant be more than 10% of the compensatory amount.
8
Q
specific remedies
A
when money isnt going to work
9
Q
declatory relief
A
title 28 section 2201
10
Q
title 28 section 2201
A
actual cases or contoversies, concrete relief hasnt happened yet, NO HYPOS, threat of danger at your doorstep.
11
Q
provisional remedies
A
relief given while case is still going on
12
Q
two kinds of provisional remedies
A
PI and TRO
13
Q
Rule 65c party seeking PI or TRO must provide…
A
the party seeking PI or TRO must provide sufficient security to cover the damages sustained by any party found to have been wrongfully enjoined
14
Q
65a PI issue
A
court may issue PI only on notice to adverse party
15
Q
Things court will look at when giving out PI
A
Likelihood of success on the merits
Likelihood of suffering irreparable harm if the injunction is not granted
The balance of equities are in favor of granting the injunction; and
The injunction is in the public interest
16
Q
65b TRO
A
TRO, court may issues a TRO without oral notice to the adverse party or its attorney only if
Specific facts in a affidavit or verified complaint clearly show immediate and irreparable injury will result before the adverse party can be heard and
The movants attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
17
Q
English Rule
A
losing side pays judgement own cost and fees and the fees of winning side
18
Q
american rule
A
losing party pays judgment but both parties pay their own attorney fees
19
Q
54d costs
A
unless a federal statute, these rules or court order provided otherwise, costs other than attorney fees should be allowed to prevailing party
20
Q
prevailing party
A
party that obtains relief that materially alters its legal relationship with its other parties
21
Q
does cost equal fees?
A
NO
22
Q
28 USC 1920 elements
A
Fees of the clerk and Marshall
□ Fees for transcripts necessarily obtained for use in the case
□ Witness fees
□ Fees for copies where necessary obtained
□ Docket fees
□ Compensations for court appointed experts Very rare.
(Modified version of American rule)
23
Q
68(a) OOJ
A
sets out definition of an OFFER OF JUDGMENT and what happens if one accepts
24
Q
68b overall description OOJ
A
describes the effect of NOT RESPONDING TO A VALID OFFER of judgment
25
68c epochal provisions OOJ
special provisions for OOJ made after a determination of liability but before the amount of liability has been determined
26
68d OOJ consequences
describes the CONSEQUENCES of an unaccepted OOJ
27
68a - elements OOJ
at least 14 days before trial, party defending against a claim may serve on the opposing an offer to allow judgment on specified terms with the cost then occured
28
68a- acceptance rulesOOJ
within 14 days after being served the opposing party serves written notice of acceptance
29
68a - after acceptance OOJ
either party can file the offer and the acceptance and the clerk must enter the judgement
30
68b elements OOJ
unaccepted offered withdrawn but it does not preclude later offer
31
68d elements OOJ
if the judgment that the offer finally obtains is not more favorable than the unaccepted offeror, the offeree must pay the cost incurred after the offer was made.
32
do all offers to settle count as an OOJ
nope
33
what is a motion
a written request that the court issue an order.
34
what is a pleading
a very specific type of filing that is used to establish the parties’ claims and defenses
35
documents that are pleadings
Complaint
Answer to a Complaint
Answer to a Counterclaim
Answer to a Crossclaim
Third-party Complaint
Answer to a Third-Party Complaint
Reply to an Answer (but only if the court orders one)
36
rule 3
A civil action is commenced by filing a COMPLAINT with the court
37
8a elements complaint
1. A short statement of the grounds for the court’s JURISDICTION
2. A short and plain statement of the CLAIM showing that the pleader is entitled to relief
3. A demand for the particular RELIEF sought
38
rule 9
imposes special pleading requirements in certain kinds of cases (e.g., fraud)
39
rule 10
governs the form of complaints
40
rule 11 overview ethical obligation
imposes ethical obligations upon the attorney submitting a complaint
41
rule 12b (dismissial)
permits courts to dismiss a complaint if is legally deficient
42
Fact pleading
some states, a statement of the facts constituting the cause of action
43
Notice pleading
FRCP, a short and plain statement of the claim showing that the pleader is entitled to relief
44
who is in charge if deciding the facts are plausible
the judge
45
what is plausible statand
more than a possibility less than a probability, reasonably inference that D is liable.
46
11a ethical obligation
Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name
47
11b ethical requirement
This means you MUST have done both of these before you file a complaint:
An investigation of the facts to ensure the factual allegations in the complaint have evidentiary support; and
Sufficient legal research to ensure that your legal contentions are warranted by existing law or a nonfrivolous argument for modifying the law.
48
11c2 eithical ramifications
If you believe the other side has engaged in conduct that violates Rule 11(b), you must follow a very specific procedure to bring that before the court.
You must serve on the other side (but not file with the court) a separate motion (it can’t be combined with other motions) specifically stating what they have done wrong
You must wait 21 days to see if they withdraw the offending motion (safe harbor provision)
If they refuse to correct the alleged error, then you may file the sanctions motion with the court
If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.
49
55a defaults
Where a party against whom a judgment for affirmative relief is sought has failed to plead … the clerk must enter the party’s default
50
is a default the same as a default judgment
no, Obtaining a default is simply first step in ultimately obtaining a default judgment
Default determines that P has won but not how much P has won
51
12a pre answer motion
1. A defendant must serve an answer:
within 21 days after being served with the summons and complaint; or
if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent …
4. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action
52
what is the remedy for most of the 12b defenses
dismissal of action
53
what defenses can be raised by pre answer motions
Lack of subject matter jurisdiction
Lack of personal jurisdiction
Improper venue
Insufficient process
Insufficient service of process
Failure to state a claim
Failure to join a required party
54
how do you make a pre answer motions
Must be made before the answer is due. Rule 12(b).
Can generally only make one pre-answer motion. Rule 12(g)(2).
Multiple Rule 12(b) defenses must be combined into a single pre-answer motion. Rule 12(g)(1) & 12(g)(2).
55
12h1 waiver defense
(1) A party waives any defense listed in Rule 12(b)(2)–(5) by:
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
USE THEM OR LOSE THEM
56
12h2 waiver defense
Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
57
12h3 waiver
(3) If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.
58
how many pre answer motions can you file
one
59
how many days do you have to answer the complaint
14 days
60
12e Motion for a More Definite Statement
Used to obtain more info when P’s claim is too “vague and ambiguous” for D to reasonably respond.
61
12 f Motion to Strike
The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter
62
12c Judgment on the Pleadings
After the pleadings are closed – but early enough not to delay trial – a party may move for judgment on the pleadings. Brought after all the pleadings have been filed. If the uncontested pleadings demonstrate that one or more of the parties is entitled to judgment, Rule 12(c) is the way to go.
If there are contradictory allegations about key questions, then judgment on the pleadings is not appropriate.
63
12d Matter Outside the Pleadings
“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”
64
8b1 Content responding to complaint
In responding to a complaint, a party must:
Admit or deny the allegations in the complaint
State in short and plain terms their defenses to each claim
65
are counter claims required
They are not required by Rule 8.
But may be required by Rule 13 (see Rule 13(a)(1) compulsory counterclaims).
And can be made even if not required (see Rule 13(b) permissive counterclaims).
66
what must a counterclaim contain
Counterclaims are claims for relief that must comply with Rule 8(a)!
Thus, they need: (1) a jurisdictional statement; (2) a short and plain statement of the claim; and (3) a demand for relief.
67
does the complaint and answer have to have the same numbering
yes
68
8b2
A denial must fairly respond to the substance of the allegation
69
8b6 - failing to deny
An allegation – other than one relating to the amount of damages – is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided
70
8b3
General denial: A party that intends in good faith to deny all the allegations of a pleading – including the jurisdictional grounds – may do so by a general denial. ALMOST NEVER APPROPRIATE.
71
8b4
Specific Denial - A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest
72
8b5
lack of knowledge - If you “lack knowledge or information sufficient to form a belief about the truth of an allegation,” you can state this and it has the effect of a denial.
But remember Rule 11 – you must make a “reasonable inquiry” before submitting a pleading.
73
when can you use 8b5
after making a reasonable inquiry, you still don’t have enough knowledge or information to know whether an allegation is true.
74
8c
affirmative defense: Contributory negligence
Release
Fraud
Statute of limitations
75
can the defense be related to the allegations in the complaint
It doesn’t have to. A defense can be based on facts that are completely separate from those raised by P in the complaint (e.g., statute of limitations).
76
who bears the burden proving allegation in the complaint? and the defenses?
1. plaintiff. 2. defendant
77
7a(2)
D must respond to the Complaint.
78
7a7
P cannot respond to an Answer unless the court orders a Reply.
79
7a3
But, if D files a Counterclaim, then P must Answer the Counterclaim.
80
15a1
You may amend your pleading once as a matter of course (Rule 15(a)(1)) either
Within 21 days after service of it; or
(if the pleading is one to which a responsive pleading is required) within 21 days after the responsive pleading or a pre-answer motion is filed, whichever is earlier
81
what does 15a1 mean for complaints
Since responsive pleadings to complaints are required (the answer is the responsive pleading), if you want to amend your complaint without seeking permission you must do it within 21 days of the answer or a Rule 12 pre-answer motion, whichever is earlier. ``
82
what does 15a1 mean for answers
Since a responsive pleading to an answer is generally not permitted (the responsive pleading to an answer would be a Reply, but they are not allowed without a court order), you must amend your answer within 21 days of serving it.
83
15a2
“In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.”
84
Leave to amend will be denied if the party opposing the amendment can show
Bad faith
Undue delay; or
Prejudice
85
15b2
When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated as if raised in the pleadings
86
15b1
Even if you object to the new theory at trial, the court may still permit the amendment if:
“the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits.
87
what is the default position in 15b1
amendments are permitted.
88
who bears the burden in 15b1
The party opposing the amendment bears the burden of showing why an amendment should not be permitted.
89
15c1b
An amendment “relates back” to the date of the original pleading when:
“the amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set out – or attempted to be set out – in the original pleading”
90
what does relate back to means
It means the amendment is treated as having the filing date of the original pleading, rather than the filing date of the amended pleading.
91
What is the Moore framework
Moore focuses on the issue of whether the first claim put D on notice about the substance of the second claim.
92
what is the bonerb framework
Bonerb focuses on the question of whether the second claim arises out of the same transaction/occurrence as the first claim.
