Civil Litigation 2

Jury Trial

a panel of individuals who decide questions of fact during a trial

Bench Trial

a trial by judge

Signature Block

At the end of any pleading doc, complaint pleading, or summons

Prayer for Relief

It is required for the complaint to demand relief

This is the portion of a complaint in which the plaintiff describes the remedies that he or she seeks from the court.

Certificate of Service

attached at the end of the pleading that shows when and how service was made

PACER

an electronic public access service that allows users to obtain case and docket information from federal appellate and bankruptcy courts

Methods of Service

Individuals

Corporations

Waiver of service

Long arm

Hague

Individuals

Serve the defendant personally at their home or work. You should have both addresses, whichever address is listed on the summons.

Will need 2 separate summonses if you're serving one at the residence, then one at work.

Registered Agent

Person or Corporation who acts on behalf of that company and is served for them

Waiving Service

The defendants waive formal service of the complaint and summons

Allows the plaintiff to send the defendant the notice of lawsuit by first-class mail or even by email

Long Arm Statutes

Allows a court to reach beyond the state's geographic boundaries and make nonresident defendants subject to suit within that specific state

The statute allows service of process on defendants who are physically located outside of the state.

The Hague Convention

An international agreement to safeguard intercountry and international standards of practices of rules, and regulations

Pleadings

Formal written documents by the parties to the litigation to either start or respond to the litigation

Notice pleading

Short and plain statement in the complaint of the claim that the plaintiff seeks to enforce and the relief that the plaintiff is requesting

Complaint

The document filed by the aggrieved party to commence litigation

Default judgment

Judgment entered against a defendant who fails to appear and defend against the lawsuit after having been given proper notice of the lawsuit

Summons

Notice accompanying the complaint that commands that the defendant appear and defend against the action within a certain period of time

Memorandum of law

Legal document submitted with a motion setting forth background facts and legal authorities to support a position

Motion to strike

A motion to eliminate certain allegations from a complaint

Motion to dismiss

A motion by the defendant that the complaint filed by the plaintiff be dismissed because of some specified defect

Affirmative defense

Defense pled by the defendant in the answer that, if proven, denies recovery to the plaintiff

Counterclaim

Claim in the form of a [leading brought by the defendant against the plaintiff as part of the same lawsuit

Reply

The plaintiff’s answer to the defendant’s counterclaim

Cross claim

A complaint brought by one codefendant against another codefendant

Third party practice

The method for bringing into an action new parties who may be liable to a defendant for some or all of the judgment

Third party complaint

A complaint by a defendant in the action against a new party, which brings this new party into an action

Interpleader

Procedure under which a party subjected to double liability may deposit into court a fund or property

Intervention of right

The ability of a person to become a party to the lawsuit when such a person has an interest in the outcome of the lawsuit

Relation back

Legal doctrine that permis an amended pleading to be deemed filed at the time the original pleading was filed

Proof of service

A notice that usually appears at the end of a pleading or motion stating particulars about the service of the pleading or motion

Tentative ruling

A ruling by the judge based on the written briefs submitted by the parites and before oral argument is heard

Under submission

Refers to the judge’s delaying decision on a motion until the judge has an opportunity for further considerationm

Magistrate

An officer of the court authorized to hear routine civil pretrial matters

Motion to strike

the motion to eliminate certain allegations from the complaint.

If the complaint contains redundant, impertinent, or scandalous material, it can be stricken out

Motion for a more definite statement

Requesting that the plaintiff give more detailed information that the defendant believes is lacking in the complaint before filing a responsive pleading

The motion must point out the defects of the complaint.

Motion to dismiss

A motion that attacks the complaint

A formal request of the court to dismiss the complaint for various reasons

For motions to dismiss, ALL defenses must be placed into one motion and NOT piecemeal to the court

Rule 12 Responses

Motion to strike Rule 12f

Motion for a more definite statement, Rule 12e

Motion to dismiss 12b

Rule 12b Defenses

Lack of subject matter jurisdiction- filed in the incorrect court

Improper venue- not filed in the proper forum (state)

Insufficiency of service process- a failure to make proper legal service of the complaint on a person or entity

Failure to state a claim- That even if all the factual allegations in the complaint are true, they are insufficient to establish a cause of action

Admit

to state that an ascertain fact is true

Deny

to refuse to acknowledge responsibility

Without knowledge or belief

must be based on good faith

without awareness or understainding

Amending Pleadings

allowed when a party needs to create a more accurate or complete pleading and the opposing party will not be substantially harmed/penalized in the litigation.

Amendments by right

any party has the right to amend a pleading (complaint, answer & replies) ONCE before a responsive pleading is made or received

Amendments by leave of the court

A party may amend its pleading only with the opposing party's written consent or with the court's leave.

Stipulations

an agreement between the parties that is designed to simplify or shorten litigation and save costs

Motion for extension of time

requesting the court to extend the time allowed for the completion of some act. Unlikely to grant if the deadline was missed due to the lawyer’s ignorance

Pro Hac Vice Motion

Latin for this occasion or for this event

A motion for adding an attorney to a case in a jurisdiction in which he or she is not licensed to practice in such a way that the attorney does not commit unauthorized practice of law

Judgement on the pleadings

A judgement entered after the pleadings have been filed but before trial

Summary judgment

A judgment rendered by the court before trial

Voluntary dismissal

A withdrawal of a claim by the party originally asserting the claim

Without prejudice

Once dismissed, the claim may be filed again

With prejudice

Once dismissed, the claim may not be refiled

Involuntary dismissal

Method of terminating a claim when the plaintiff or other claimant has been guilty of misconduct or inaction

Default

a failure of a party to respond to the pleading of the opposing party

Provisional remedies

Remedies that allow a plaintiff to essentially obtain the relief requested from the defendant before going to trial

Injunction

equitable remedy used by the plaintiff to stop certain conduct or actions of the defendant

Temporary restraining order

An order from the court temporarily prohibiting a party from doing some act until such time as a hearing for an injunction can be heard

Preliminary injunction

An injunction granted after a hearing; maintains the status quo until trial

Attachment

Pretrial order of the court seizing property of the defendant for later satisfaction of any judgment received by the plaintiff

Writ of possession

Issued in a case where the defendant has given a plaintiff a security interest in some tangible personal property for repayment of a debt

Lis pendens

A notice that is recorded against particular real property alerting potential purchasers that there is a pending dispute