MBE CIVIL PROCEDURE: Pleadings & Parties

⚠️ If D waived service, answer is due within 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)

60

⚠️ If D waived service, answer is due within 60 days after request for waiver was sent, or within 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)

90

⚠️ 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 days. FRCP 12(a)(1)(A)(i)

60

12(b) defenses that are if not included in the 12(b) motion Lack of personal jurisdiction Improper venue Insufficient process Insufficient service of process Motion for a more definite statement FRCP 12(h)

waived

A party has ___ days to respond to an amended pleading after service of the amended pleading or the time remaining for response to the original pleading (unless the court orders otherwise). FRCP 15(a)(3)

14

A suit brought by one or more persons on behalf of a larger group of individuals (called a class). FRCP 23

class action

After a party has been impleaded into a lawsuit, what claims can be filed by the: Impleaded party: Claims of its own against or impleader claims for FRCP 14(a)(2)

other parties, additional parties.

After a party has been impleaded into a lawsuit, what claims can be filed by the: Original P: Claims if the claim relates to the original claims. FRCP 14a)(3)

against the impleaded D

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

interpleader

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

severance

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. FRCP 18

joinder of claims

Allows SMJ to exist when: Class has more than 100 Class has more than 100 members; Any class member is diverse from any opposing party (minimal diversity); and Aggregated claims are greater than $5 million

Class Action Fairness Act

Any claim against the opposing party that: Arises out of the same transaction or occurrence as the original claim; and Does not require adding another party over whom the court cannot acquire jurisdiction FRCP 13(a)(1)

counterclaim compulsory

Are joint tortfeasors considered necessary parties FRCP 20

No

Are Rule 11 sanctions required : No, whether to grant sanctions is up to the court’s discretion. FRCP 11(c)

No

bulge provision : Under FRCP 4(k)(b), a third party can be served with proper notice anywhere within of the court issuing the summons. ⚠️ Note: Only applies to third party D’s & indispensible parties.

bulge provision

Can you amend during or after trial FRCP 15(b)

Yes, with permission

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. FRCP 13(g)

cross-claim

Class Action Fairness Act (CAFA) Allows SMJ to exist when: Class has more than members; Any class member is diverse from any opposing party (minimal diversity); and Aggregated claims are greater than $5 million

100

Class Action Fairness Act (CAFA) Allows SMJ to exist when: Class has more than 100 members; Any class member is from any opposing party and Aggregated claims are greater than $5 million

diverse

Class Action Fairness Act (CAFA) Allows SMJ to exist when: Class has more than 100 members; Any class member is diverse from any opposing party (minimal diversity); and Aggregated claims are greater than

5 million

Court needs to have PJ over and all involuntary P’s. FRCP 19

all D’s

Court needs to have PJ over all D’s and all FRCP 19

involuntary P’s.

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

21

Defense on the basis of the complaint.

ordinary defense

Defense that introduces new facts to defeat or mitigate D’s liability.

affirmative defense

Diversity class actions: 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)

supplemental jurisdiction

Do permissive counterclaims have to arise from the same transaction or occurrence as the original claim FRCP 19(b)(1-4)

No. FRCP 13(b)

Does failure to bring a compulsory counterclaim preclude D from bringing it later in a separate suit Yes, unless: D was that he could bring the compulsory counterclaim (Dindo v. Whitney 1971); or D wins an affirmative defense (D can counterclaim on the same facts)

not aware

Does failure to bring a permissive counterclaim preclude D from bringing it later in a separate suit No, not precluded in a future suit. of suitable age and discretion who resides there; or (C) delivering

No

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 likely defeated

Commonality

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

LIKELY YES

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

Dismiss the party

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. FRCP 11(c)(2)

Rule 11 “safe harbor” provision

Intervention that permits a non-party to join a lawsuit through its own initiative. FRCP 24

Rule 24 intervention

Is joinder mandatory for joint tortfeasers. FRCP 20

No

Is proper SMJ required for joinder

Yes

joinder of claims : Allows existing parties to file additional claims against each other, regardless of whether they are related. Parties can file FRCP 18

as many additional claims as they wish.

Lack of SMJ; Lack of PJ; Improper venue; Insufficient process; Insufficient service of process; Failure to state a claim upon which relief can be granted; and Failure to join a party under Rule 19 FRCP 12(b)

Rule 12(b) grounds for dismissal

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

12(c) motion

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.

12(b)(6) motion

Once D files a cross-claim against a co-D, what type of claim can the co-D then file → can be compulsory or permissive. FRCP 13

Counterclaim

Once D files a cross-claim against a co-D, what type of claim can the co-D then file Counterclaim → can be FRCP 13

compulsory or permissive.

Permissive intervention is available Upon timely application and at the court’s discretion; When the intervenor has a claim or defense that shares a with the main claim FRCP 24(b)

common nucleus of operative fact

Pleading filed to initiate lawsuit.

complaint

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. FRCP 15(d)

supplemental pleadings

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 FRCP 11(b)

Rule 11 signing requirement

supplemental pleadings : Pleadings that describe a transaction, occurrence, or event that happened after the date of the original pleading. Court may permit on and upon FRCP 15(d)

motion , reasonable notice.

The court does not need to have PJ over or those who waive PJ. FRCP 19

voluntary P’s

The court does not need to have PJ over voluntary P’s or FRCP 19

those who waive PJ.

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

True

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.

bulge provision

What are the 4 prerequisites to beginning a class action under FRCP 23(a) @ Class action is only proper if: the class is so big that joinder of all would be impractical; Commonality: there is a question of law or fact common to the class; 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 Representativeness: the representative parties will fairly and adequately

Numerosity

What are the 4 prerequisites to beginning a class action under FRCP 23(a) @ Class action is only proper if: Numerosity: the class is so numerous that joinder of all would be impractical; there is a question of 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 Representativeness: the representative parties will fairly and adequately

Commonality, law or fact common to the class

What are the 4 prerequisites to beginning a class action under FRCP 23(a) @ Class action is only proper if: Numerosity: the class is so numerous that joinder of all would be impractical; Commonality: there is a question of law or fact common to the class; the claims of the representative parties are thus ensuring the representatives will have incentive to litigate in a way that will protect the class; and Representativeness: the representative parties will fairly and adequately

Typicality, typical of those of the class

What are the 4 prerequisites to beginning a class action under FRCP 23(a) @ Class action is only proper if: Numerosity: the class is so numerous that joinder of all would be impractical; Commonality: there is a question of law or fact common to the class; 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 Representativeness: the representative parties will

fairly and adequately

What are the PJ requirements of rule (FRCP 22) interpleader @ PJ: must exist for all claimants

must exist for all claimants

What are the rules regarding settlements for class actions : Court must Class members should be provided notice of the possible settlement; and Settlement must be reasonable, fair, and adequate FRCP 23(e)

approve all settlements;

What are the rules regarding settlements for class actions : Court must approve all settlements; Class members should be of the possible settlement; and Settlement must be reasonable, fair, and adequate FRCP 23(e)

provided notice

What are the rules regarding settlements for class actions : Court must approve all settlements; Class members should be provided notice of the possible settlement; and Settlement must be reasonable, fair, and adequate FRCP 23(e)

reasonable, fair, and adequate

What are the SMJ requirements for a class action under 1332(a) Diversity class actions: Class representatives must be and 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

diverse from all opposing parties;

What are the SMJ requirements for a class action under 1332(a) Diversity class actions: Class representatives must be diverse from all opposing parties; and Amount in controversy must be for every class member

$75K

What are the SMJ requirements for a class action under 1332(a) Federal question class actions: same requirements as other suits.

same requirements

What are the SMJ requirements of rule (FRCP 22) interpleader SMJ: Stakeholder must be diverse from every claimant ( required) and amount in controversy >$75K

complete diversity

What are the SMJ requirements of rule (FRCP 22) interpleader SMJ: Stakeholder must be diverse from every claimant (complete diversity required) and amount in controversy

$75K

What are the SMJ, PJ, and venue requirements for statutory interpleader PJ: exists as long as claimants are in the US

in the US

What are the SMJ, PJ, and venue requirements for statutory interpleader SMJ: one claimant must be diverse from at least one other claimant ( required) and amount in controversy must be 500 or more.

minimal diversity

What are the SMJ, PJ, and venue requirements for statutory interpleader SMJ: one claimant must be diverse from at least one other claimant (minimal diversity required) and amount in controversy must be

500 or more

What are the SMJ, PJ, and venue requirements for statutory interpleader Venue: proper in any district where 28 USC § 1335

any claimant resides

What are the three types of class actions under Rule 23(b) : When separate actions would create a risk of or judgments that would substantially impair the ability of a non-party member to protect his interests (FRCP 23(b)(1)) When the class seeks injunctive or declaratory relief (not damages) (FRCP 23(b)(2)) 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

inconsistent judgments

What are the three types of class actions under Rule 23(b) : 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)) When the class seeks (not damages) (FRCP 23(b)(2)) 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

injunctive or declaratory relief

What are the three types of class actions under Rule 23(b) : 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)) When the class seeks injunctive or declaratory relief (not damages) (FRCP 23(b)(2)) Most common: When a class seeks damages and questions of law or fact common to class members so that a class action is superior to individual

predominate over questions affecting individual members,

What are the two different types of interpleader

Rule, statutory

What are the two steps the court takes to determine whether a class action is appropriate : Asks: If yes: Does class fall under 3 categories outlined in: 23b 1-3 If yes → the court may certify the class.

Does class fall under 3 categories outlined 23b 1-3

What are the two steps the court takes to determine whether a class action is appropriate : Asks: Does the class fulfill the four requirements under Rule 23(a) If yes: If yes → the court may certify the class.

Does class fulfill four requirements under Rule 23(a)

What are the venue requirements of rule (FRCP 22) interpleader @ Venue: FRCP 22

same rules as other federal cases

What are types of Rule 11 sanctions : Monetary/penalty: court fees associated with the incurred by the other party Non-monetary: reprimand or strike the pleadings FRCP 11(c)

cost of seeking sanctions

What are types of Rule 11 sanctions : Monetary/penalty: court fees associated with the cost of seeking sanctions incurred by the other party Non-monetary: FRCP 11(c)

reprimand or strike the pleadings

What do you call the parties involved in an interpleader claim : whoever holds the property. An interpleader allows them to turn the property over to the court so that they does not face liability.

Stakeholder

What do you call the parties involved in an interpleader claim : Claimants: parties fighting over/claiming the stake

Claimants

What do you call the property at issue in an interpleader claim : Stake: whatever is being fought over/claimed by the claimants (ex. estate)

Stake

What does it mean for a claim to arise from the same transaction or occurence : When the claim is to the original claim or the core facts

logically related, substantially overlap

What does it mean if an amendment “relates back” : It means that the amendment relates back to the (often used when statute of limitations has expired) FRCP 15(c) agent authorized by appointment or by law to receive service service of process.

date of the original pleading

What is 12(b)(6) motion deadline for filing : If a responsive pleading is required - the 12(b)(6) motion must be filed If no responsive pleading is required, the 12(b)(6) motion can be filed anytime before trial or at trial. Rule 12(b)(6)

before the answer.

What is 12(b)(6) motion deadline for filing : 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 Rule 12(b)(6)

anytime before trial or at trial.

What is 12(c) motion deadline for filing

after D files answer.

What is required for PJ to exist for a class action under 23(b)(3) Minimum contacts: only required for Notice: must be given to all members Members must be given ability to opt out FRCP 23

present class members

What is required for PJ to exist for a class action under 23(b)(3) Minimum contacts: only required for present class members Notice: must be given to Members must be given ability to opt out FRCP 23

all members

What is required for PJ to exist for a class action under 23(b)(3) Minimum contacts: only required for present class members Notice: must be given to all members Members must be given ability to FRCP 23

opt out

What is the effect if a party pleads lack of information because they don’t know whether allegation is true: Will be treated as a

denial.

What is the effect of a judgment in a class action on the class members : The judgment of the class unless a class member notifies court that they do not wish to be

binds all members

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

Before the answer.

What is the deadlineto file an impleader claim : Within days of serving an answer; or With permission of court FRCP 14(a)(1)

14 days

What is the deadlineto file an impleader claim : Within 14 days of serving an answer; or With FRCP 14(a)(1)

permission of court

What must a complaint contain: ; Statement of claim; and Demand for relief (damages, equitable relief, etc) FRCP 8(a)

Grounds for SMJ;

What must a complaint contain: Grounds for SMJ; Statement of and Demand for relief (damages, equitable relief, etc) FRCP 8(a)

claim;

What must a complaint contain: Grounds for SMJ; Statement of claim; and (damages, equitable relief, etc) FRCP 8(a) stay proceedings until the order is obeyed, dismiss the action, or

Demand for relief

What must a party do if they want to amend twice or after the deadlines have expired : Seek either the permission or the permission (by motion). FRCP 15(a)(2)

other party’s, court's

What must an answer contain : of all complaint allegations (failure to deny constitutes admission) (if D fails to raise in answer, they will be waived). Examples include: Self-defense Statute of Frauds Statute of Limitation Contributory negligence Claim preclusion Fraud

admittance or denial, affirmative defenses

What must the statement of claim contain : showing that P has a plausible claim for relief. FRCP 8(a)(2)

“Short and plain statement”