Civ Pro -- Spring

FRCP Rule 8

General Pleading

1) courts jurisdiction 2) statement showing pleader is entitled to relief 3) demand for relief sought

FRCP 12 (b)

Responses to Complaint

Party may assert, by motion or answer 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 7) failure to join a party.

IF D does not state 2-5, they waive that defense. 1,6,7 are permitted at any stage of litigation.

FRCP rule 55

Default judgment

IF party fails to plead or defend a complaint THEN a default judgement is entered against them

FRCP rule 11

Care and Candor

Either Party must present pleading, written motion, signing, filing, submitting, or later advocating that is reasonable under the circumstances. Pleadings must be proper and not to harass, incur cost, or delay, and Answer or defenses must not be frivolous.

FRCP 18

Joinder of Claims

Any party asserting a claim, crossclaim, or counterclaim as many claims as it has against an opposing party

FRCP rule 20

Joinder of Parties

A) allows P’s to be joined if they assert a claim that arises out of the same transaction or occurrence AND their claim involves a common question of law or fact

B) allows D’s to be joined if any right to relief, either jointly or severally, or in the alternative that arises out of the same transaction or occurrence AND involves a common question of law or fact

FRCP rule 19

Required Joinder

1) is the absentee a required party?

In this persons absence would a) the court cannot accord relief b) that persons absence would impair that persons ability to protect their interest OR have an existing party have a substantial risk to double or be inconsistent judgement

2) is joinder feasible?

Joinder is feasible UNLESS the party is 1) not subject to courts PJ 2) joining party destroys diversity 3) venue is improper

FRCP rule 24

Intervention

1) Must permit intervention IF the party has a right to intervene via federal statute OR claims an interest relating to the transaction that is the subject of litigation that impairs or impedes movant from protecting their interest

2) Permissive intervention IF the party has a conditional right to intervene via federal statute OR shares a claim or defense with main action that is a common issue of law or fact

Statutory Interpleader

28 USC 1335(a)

IF the amount in controversy is 500 or more in any civil diversity action 2 or more parties of minimally diverse citizenship who claim to be entitled to the money or property at stake

Supplemental Jurisdiction

28 USC 1367

1) is there original jurisdiction over the claim

2) In any civil action

3) of which the court has original jurisdiction over the anchor claim

4) then the district court will have supplemental jurisdiction over all other claims

5) that are so related to the anchor claim and create the same case or controversy

• common nucleus of operative facts

• logical relationship test — transaction or occurence — time, space, origin, motivation

6) includes joinder or intervention

UNLESS

7) in any civil action

8) which district courts have original jurisdiction founded solely on Diversity

9) then the district court will not have supplemental jurisdiction over rule 14, 19, 20, 24 made by the original plaintiff that would be inconsistent with diversity jurisdiction

FRCP rule 13(a)

Compulsory counterclaim

A) MUST state a counterclaim at the time of service against an opposing party that arises out of the same transaction or occurrence AND does not require adding another party that the court does not have jurisdiction over

FRCP rule 13 (b)

Permissive counterclaim

B) MAY state as a counterclaim any claim or right of relief against an opposing party that is not compulsory

FRCP rule 13 (g)

Crossclaims

G) a pleading MAY state as a crossclaim against a coparty IF the claim arises out of the same transaction or occurence

— Permissive

FRCP rule 22

Rule Interpleader

In any civil action IF amt in controversy is greater that 75,000 and the court has jurisdiction over the matter, P can interplead 2 or more parties of complete diversity who claim to be entitled to property or money at stake

— complete diversity, subject to courts PJ, venue governs, > 75k amt in controversy

FRCP 26

Discovery

1) Matter that is

— tangible & intangible

2) Not privileged

— atty-client; doctor-patient; clergy; spousal

3) relevant to any parties claim or defenses

— use facts

4) proportional to the needs of the case

— importance of the issue; amt in controversy; parties relative access to information; parties resources; importance of discovery in resolving issue; whether burden or expense of discovery outweighs benefit

5) Need not be admissible

— hearsay, may lead a party to admissible evidence

FRCP 26 (b)(3)

Attorney Work Product

A) A party may not discover documents and tangible things that are made in preparation for litigation or trial by or for one party or its representative UNLESS the matter is otherwise discoverable OR the opposing party shows it has a substantial need for the material to prepare for its case and cannot without undue hardship obtain the equivalent

Erie Substantive Law

In a federal diversity action, the court should apply the law of the state, legislature, or state supreme court. Unless there is a conflict of law rule, the court should apply the conflict of law rule of the state in which the district court sits.

Hanna 2

Is there a FCRP that covers the procedural point in dispute?

YES

Does Congress have the constitutional authority to pass the FRCP?

IF NO — apply state rule

YES

Did Congress give the S. Ct. authority to pass FRCP in RDA?

IF NO — apply state rule

IF YES

Does the FRCP violate 28 USC 2072 (b)?

such rules should not abridge, enlarge, or modify any substantive right

IF YES — apply state rule

IF NO — apply FRCP

Hanna 1

Is their an FRCP that covers the procedural point in dispute?

NO

Apply Modified Outcome Determinative Test

1) Litigant equality —- IF P goes to federal court and the court does not apply state procedural law, is P better off?

2) forum shopping — Would P choose a different forum because Fed ct. applies different procedural law?

IF YES to Both Apply State procedural law

IF NO to Both Apply Fed procedural law

Plausible Pleading

Twombly-Iqbal Test

IF a pleading contains sufficient factual allegations AND a plausible legal avenue for recovery, THEN the court will consider the complaint sufficient UNLESS the complaint has insufficient factual allegations, or mere legal conclusions.