Civ Pro 2 Rules

8(b)(1)

State defenses in short and plain terms to each claim. Admit or deny allegations

8(b)(5)

You must state if you lack info or knowledge to form a belief

8(c)(1)

when responding to a pleading a party must affirmatively state avoidance or affirmative defense

12(a)(1)(A)

Defendant must serve an answer within 21 days after being served with summons and complaint or if it was timely waived under Rule4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside US

12(a)(1)(B)

party must serve answer to counter or cross claim within 21 days of being served

12(a)(1)(C)

party must serve reply to answer withing 21 days after being served with an order to reply, unless order specifies different

12(a)(4)

if court denies the motion or postpones it until trial, responsive pleading must be served within 14 days after notice

12(b)(1)

lack of SMJ

12(b)(2)

lack of PJ

12(b)(3)

improper venue

12(b)(4)

insufficient process

12(b)(5)

insufficient SOP

12(b)(6)

failure to state a claim upon which relief can be granted

12(b)(7)

failure to join a party under rule 19

12(g)(2)

if a party makes a rule 12 motion it must raise all available defenses or objections in that motion, except as provided in rule 12(h)(2) or (3)

12(h)(1)

party waives defenses 12(b)(2)-(5) by omitting it from a motion as described in 12(g) or failing to make it by motion under rule 12

12(h)(2)

failure to state a claim 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 in any pleading under rule 7(a), by motion under 12(c) or at trial

12(h)(3)

if court determines lack of SMJ at any time must dismiss

15(a)(1)

a party may amend pleading once no later than 21 days after serving it or if responsive pleading is required, 21 days after service of a motion under Rule 12(b),(e), or (f), whichever is earlier

15(a)(2)

in all other cases a party may amend pleading only with opposing parties' written consent or court leave when justice requires

15(b)(1)

if party objects to evidence not within issues raised in pleading, court may permit pleading to be amended. Should do so when aids in presenting merits and objecting party fails to satisfy court that evidence would prejudice party's action or defense on merits. Court may grant continuance to enable objecting party to meet evidence

15(b)(2)

when issue is not raised at pleading is tried by parties' express or implied consent, must be treated as if raised in the pleading. Party may at any time move to amend pleading to conform them to evidence and raise unpleaded issue. failure to amend does not affect result of trial

15(c)(1)

an amendemt to pleading relates back to date of original pleading when law provides applicable state of limitations allows relation back, amendment asserts claim or defense arising out of same transaction or occurrence set out out or attempted to be set out in original pleading, or amendment changes the party or naming of party whom a claim is asserted, if rule 15(c)(1)(B) is satisfied and within period provided by 4(m) for serving summons and complaint, party to be brought in by amendement recieved notice of action so not prejudice and knew or should have known action would have been brought but for mistake concerning proper party's ID

23(a)

all four prongs are required prerequisites to be proven by the party seeking clarification

23(a)(1)

numerosity - class so numerous that joinder of all members is impracticable. court considers geographic dispersion and whether joinder destroys diversity. 75-100

23(a)(2)

commonality - there is at least one question of law or fact common to class capable of class wide resolution

23(a)(3)

typicality - claims or defenses of the representative parties arise from same course of events and the representatives make similar legal arguments as class members

23(a)(4)

adequacy - the representative parties and counsel can prosecute the case effectively; there are no conflicts of interests, will fairly and adequately protect interests of class

23(b)

one of the three types of class action is necessary and proven by party seeking certification

23(b)(1)

class may be maintained if prosecuting separate actions would create risk of inconsistent or incompatible standards of conduct for the party opposing the class, be impossible for def to comply with two inconsistent judgements or substantially impair or impede others' ability to protect their interests. This is a mandatory class, notice is required, no opt-out rights

23(b)(2)

party opposing the class has acted or refused to act on grounds that apply to the class so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole

23(b)(3)

question of law or fact common to class members predominate and class action is superior to other methods. Court will consider class member interest in controlling prosecution or defense of separate actions, extent and nature of litigation concerning controversy already begun by or against class, desirability or undesirability of concentrating the litigation of the claims in particular forum, and likely difficulties in managing class actions

23(c)(1)(a)

at an early practicable time, court must certify the class (may be several months)

23(c)(1)(b)

requires court to define class and claims, issues, or defenses

23(c)(1)(c)

requires court to alter or amend class order before final judgement because court has to monitor class

23(c)(2)(b)

for class certified under 23(b)(3) the court must direct class members the best notice that is practicable in the circumstances, including individual notice to all members. Notice must clearly and concisely state in plain easily understood language: nature of action, definition of class, class claims, issues or defenses, that a class member may enter appearance through an attorney if member desires, court will exclude any member who requests exclusion, time and manner for requesting exclusion, binding effect of class judgement on members under 23(c)(3)

23(c)(4)

when appropriate an action may be brought or maintained as a class action with respect to particular issues

23(c)(5)

subclasses are permitted

23(e)(1)

The claims, issues, or defenses of a certified class or a class proposed to be certified for purposes of settlement may be settled, voluntarily dismissed, or compromised only with the court's approval. For a proposed settlement, voluntary dismissal, or compromise: The parties must provide information sufficient to determine whether to give notice of the proposal to the class. Court must direct notice in a reasonable manner to all class members who would be bound by the proposal if giving notice is justified by the parties' showing that the court will likely be able to approve the proposal under 23(e)(2); and

certify the class for purposes of judgment on the proposal.

23(e)(2)

court must hold fairness hearing and can approve action finding "fair, reasonable, and adequate" Consider whether: adequate representation, proposal negotiated at arm's length, relief provided is adequate (costs, risks, delay of trial, effectiveness of proposed method of relief distribution, terms of awards, agreement required under 23(e)(3)), and proposal treats class members equitably relative

23(f)

Certification is an interlocutory appeal not final decision appeal. Party must file a petition for permission to appeal with circuit clerk 14 days after order is entered or 45 days if party is US etc.

41(a)(1)(A)

plaintiff may voluntarily dismiss an action without court order by filing notice of dismissal before opposing party serves either an answer or msj or stipulation of dismissal signed by all parties who have appeared

41(a)(1)(B)

unless notice or stipulation states otherwise, dismissal without prejudice. if plaintiff previously dismissed any federal or state court action of same claim a notice of dismissal operates as an adjudication on the merits

41(a)(2)

action may be dismissed at plaintiff request only by court order if defendant pleads counter claim before served with mtd, action may be dismissed over def's objection only if counter can remain pending for independent adjudication. Without prejudice unless otherwise states

41(b)

if p fails to prosecute or comply with rules of court order, d may move to dismiss claim or action and any dismissal not under 41 except for lack of jurisdiction, improper venue, or failure to join under 19 operates as an adjudication on the merits

55(a)

if party does not respond or defend lawsuit and the failure is shown by affidavit, clerk must enter party's default

55(b)(1)

if p's claim is certain, clerk on p's request with affidavit showing amount due must enter judgement for that and cost against d who defaulted for not appearing and who is not minor or incompetent

55(b)(2)

party must apply to court default judgement. if party has appeared by person or representative then must be served written notice at least 7 days before hearing. may conduct hearing or make referrals when it needs to conduct accounting, determine damages, establish truth, investigate

60(b)

on motion and just terms court may receive party or legal representative from final judgement order or proceeding for: mistake, inadvertence, surprise or excusable neglect; newly discovered evidence that with reasonable diligence could not have been discovered in time to move for new trial under 59(b); fraud, misrepresentation, misconduct by an opposing party; judgement is void; judgement has been satisfied, released, discharges, no longer equitable